Ardill Payne and Partners v Ballina Shire Council

[2019] NSWLEC 1633

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ardill Payne & Partners v Ballina Shire Council [2019] NSWLEC 1633
Hearing dates:	Conciliation conference on 12-13 September 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The Applicant is granted leave to amend development application DA 2017/707 to rely upon the plans and documents identified in condition 1 of Annexure ‘A’. (2)   The appeal is upheld. (3)   Development consent is granted to development application DA 2017/707 for the demolition of an existing dwelling and associated structures, and construction of a new dwelling containing two storeys above ground level, a basement storey for car parking and storage, a swimming pool, boundary fences and part roof-top terrace at Lot 41 Sec 1 DP 11687, 5 Rayner Lane, Lennox Head, subject to the conditions of consent set out in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Ballina Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Standard Instrument – Principal Local Environmental Plan Standard Instrument (Local Environmental Plans) Order 2006
Category:	Principal judgment
Parties:	Ardill Payne & Partners (Applicant) Ballina Shire Council (Respondent)
Representation:	Counsel: M Young (Solicitor) (Applicant) M Harker (Solicitor) (Respondent)   Solicitors: McCartney Young Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/383691
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application 2017/707 for the demolition and construction of a dwelling containing two storeys above ground level, a basement car park and storage, swimming pool and boundary fence and part roof-top terrace at Lot 41 Sec 1 DP 11687, 5 Rayner Lane, Lennox head.

2. The background facts are set out in the Council’s Statement of Facts and Contentions (SOFAC) filed with the Court on 1 February 2019 and the applicant‘s reply filed on 6 March 2019.

3. In accordance with the Court’s usual practice, a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), was convened between the parties on 12 September 2019. I presided over the conciliation.

4. After the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant’s amended application on a conditional basis.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this instance, the parties have explained how the contentions in the appeal and the jurisdictional prerequisites have been satisfied. In that regard, the parties agree that the contentions raised by Council in the proceedings have been resolved and the Court has power to grant consent to the development the subject of the proceedings in the proper exercise of its functions. In coming to this conclusion, the parties are satisfied that the jurisdictional prerequisite in the former cl 5.5 of the Ballina Local Environmental Plan 2012 is satisfied.

6. The development application was lodged on 13 December 2017, before the coming into force of the coastal reforms which repealed cl 5.5 of the Standard Instrument – Principal Local Environmental Plan. Clause 5.5 therefore continues to apply to the development application by virtue of cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006.

7. Clause 5.5 provided relevantly that:

(3)    Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that:

(a)    the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and

(b)    if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(c)    the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(d)    the proposed development will not:

(i)    be significantly affected by coastal hazards, or

(ii)    have a significant impact on coastal hazards, or

(iii)    increase the risk of coastal hazards in relation to any other land.

8. The development is on private land and, with the exception of a cantilevered balcony, set back behind the foreshore building line. It will therefore not interfere with public access to the foreshore. This is reflected in the Council Development Assessment Report at pages 119 and 121 of the Respondent’s Bundle of Documents.

9. The development will be connected to Council’s sewerage system. Clause 5.5(3)(b) is therefore not relevant.

10. Stormwater is to be discharged into an on-site absorption system, and therefore will not discharge into the sea, beach or other locations referred to in cl 5.5(3)(c). This is addressed in condition 15 of Annexure ‘A’ to the s 34 agreement executed by the parties.

11. In respect of cl 5.3(d), the development is set back behind the foreshore building line, with the exception of a cantilevered balcony 1 metre above ground level (Ground Floor Plan SK-04). Condition 47 requires that a qualified engineer experienced in the design of buildings in coastal hazard areas is to certify that the design of the building and all ancillary structures will allow ocean inundation from waves overtopping the seawall to dissipate across the lot without affecting adjoining properties by way of additional inundation or scouring. As a result, the parties are satisfied that the development will not impact upon coastal hazards or increase the risk of coastal hazards on any other land (see also the Development Assessment Report at page 119 of the Respondent’s Bundle of Documents).

12. As a consequence of the set-back behind the foreshore building line of all solid elements at ground level, and the requirement that the building be designed to withstand potential wave forces, and incorporate a suspended designed supported off piles (condition 6 of Annexure ‘A’), the parties are of the view that the Court can and should be satisfied that the development will not be significantly affected by coastal hazards.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court orders:

1. The Applicant is granted leave to amend development application DA 2017/707 to rely upon the plans and documents identified in condition 1 of Annexure ‘A’.

2. The appeal is upheld.

3. Development consent is granted to development application DA 2017/707 for the demolition of an existing dwelling and associated structures, and construction of a new dwelling containing two storeys above ground level, a basement storey for car parking and storage, a swimming pool, boundary fences and part roof-top terrace at Lot 41 Sec 1 DP 11687, 5 Rayner Lane, Lennox Head, subject to the conditions of consent set out in Annexure ‘A’.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (76.8 KB, pdf)

**********

Decision last updated: 24 December 2019