Asfour v Yass Valley Council

[2024] NSWLEC 1543

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Asfour v Yass Valley Council [2024] NSWLEC 1543

Hearing dates:

Conciliation Conference on 18 July 2024

Date of orders:

04 September 2024

Decision date:

04 September 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the

Respondent that have been thrown away as a result of the Amended Development Application, as agreed, in the amount of

$1,000, within 21 days of the date these orders are made.

(2)   The appeal is upheld.

(3)   Development Application No. 230523, as amended, for building works, a change of building classification and use of the

shed structure as a dwelling house on land known as 5 Ambleside Avenue, Murrumbateman, is determined by the grant of

Development Consent subject to the conditions set out in Annexure B.

Catchwords:

Change of Use from shed to dwelling – agreement reached – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15,8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55–Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Yass Local Environmental Plan 2014, cll 5.16, 6.8

Category:

Principal judgment

Parties:

Khaled Asfour (Applicant)
Yass Valley Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
A Menyhart (Solicitor) (Respondent)

Solicitors:
Sterling Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2024/173826

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, Khaled Asfour, against the deemed refusal by Yass Valley Council, the Respondent, in respect to Development Application DA230523.

2. The Development Application seeks development consent for the use of an existing shed as a dwelling house, as well as for works required to convert that shed to a dwelling. The proposal is for works at lot 7 DP 285245, known as 5 Ambleside Avenue, Murrumbateman.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over the conciliation conference which was held on 18 July 2024.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. The agreement was reached after revised plans were provided by the Applicant that demonstrated that the proposed building works achieved compliance with the classification for a dwelling, proposed compliant ceiling heights and could achieve compliant drainage.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Yass Local Environmental Plan 2014 (YLEP 2014), the subject site is zoned R5 Large Lot Residential. Development for the purpose of dwelling houses is permitted with consent in the zone. In determining the Development Application, the parties have had regard to the objectives of the zone.

2. Clause 5.16 requires the following matters are to be taken into account by the consent authority when considering whether to grant consent to a development for the purpose of the erection of a dwelling. The parties agree that the development is not likely to have a significant impact on other land uses in the vicinity of the development. No particular measures are proposed or required to avoid or minimise incompatibility.

3. The Land is in part identified as "Biodiversity" on the YLEP 2014 Natural Resources Biodiversity Map (map NRB_005, dated 17 July 2020 to date). The development is not proposed to take place within the area mapped as 'biodiversity' and no significant vegetation is to be removed as part of the proposal.

4. The Land is identified as "Dryland Salinity" on the YLEP 2014 Natural Resources Land Map (map NRL_005, dated 17 July 2020 to date). Most of the earthworks required to upgrade the internal driveway is outside of the area mapped as 'dryland salinity'. Any earthworks occurring within the area mapped as 'dryland salinity' will have minimal impact on the land.

5. Clause 6.8 of the YLEP 2014 provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

1. the supply of water,

2. the supply of electricity,

3. the disposal and management of sewage,

4. stormwater drainage or on-site conservation,

5. suitable vehicular access,

6. connection to a communications network with voice or data capability (or both).

6. The site is already connected to water, electricity, internet and an onsite sewage management system. The Development Application proposes works to improve stormwater drainage and a condition is proposed to ensure suitable vehicle access is be provided prior to the issue of an occupation certificate for the development.

Building Information Certificate

8. The parties agree that the Applicant proposes to retain and rely on unauthorised works which have been carried out to the building, including the erection of internal walls and installation of kitchen, bathroom and laundry facilities. Some of the unapproved works may be modified by the building works to be undertaken pursuant to the development consent. The parties have agreed, to provide surety that the final premises will be suitable for use as residential premises, that a condition of consent be included that requires the Applicant to obtain a building information certificate in respect of the unapproved building works to be retained and used prior to the issue of an occupation certificate for the change of use.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Consideration has also been given to whether the Site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Site is zoned R5 Large Lot Residential and is part of a residential estate known as the Ambleside Estate. At the time the subdivision consent for the Estate was issued the Council had formed the view under (then) State Environmental Planning Policy No 55–Remediation of Land (SEPP 55) that the land was suitable for its intended use for residential development.

10. The Respondent is not aware of any commercial industrial activity which has taken place on the Site since, that would be likely to result in contamination such as to render it unsuitable for the proposed residential use. To the extent that the Site was previously used for agricultural purposes, the Council’s records identify that a sheep dip was previously located on the land but that a soil audit dated 28 May 2007 demonstrates that the site is not contaminated. The parties agree that the requirements of s 4.6(1) of the Resilience and Hazards SEPP are satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

11. The Development Application is supported by BASIX Certificate dated 7 August 2024. The BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021.

Conclusions

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

13. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

14. The Court notes that:

1. Yass Valley Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA 230523 in accordance with the listed plans and documents in Annexure A to this judgment.

15. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Development Application, as agreed, in the amount of $1,000, within 21 days of the date these orders are made.

2. The appeal is upheld.

3. Development Application No. 230523, as amended, for building works, a change of building classification and use of the shed structure as a dwelling house on land known as 5 Ambleside Avenue, Murrumbateman, is determined by the grant of Development Consent subject to the conditions set out in Annexure B.

Stuart Harding

Acting Commissioner of the Court

Annexure A 

Annexure B

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Amendments

09 September 2024 - Correction made to typographical error of representation on the coversheet.

Decision last updated: 09 September 2024