Berge De Sarkissan v Northern Beaches Council

[2022] NSWLEC 1311

Land and Environment Court

New South Wales

Medium Neutral Citation:

Berge De Sarkissan v Northern Beaches Council [2022] NSWLEC 1311

Hearing dates:

Conciliation conference 12, 13 May 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to Development Application DA2021/1140 for the demolition of the existing dwelling house and construction of a new dwelling house at 72 Carrington Parade, Curl Curl (Lot 1 DP 366860), subject to the conditions including the deferred commencement condition A1 contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling development – amended plans – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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, cll 4.6, 2.10, 2.11

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Warringah Local Environmental Plan 2011, cll 4.3, 6.1, 6.2,

Category:

Principal judgment

Parties:

Berge Der Sarkissan (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Patterson (Respodent)

Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/361939

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the refusal of Development Application No DA2021/1140 by Northern Beaches Council. The development application seeks consent for the demolition of existing works and construction of a dwelling. The development is proposed at 72 Carrington Parade, Curl Curl (Lot 1 DP 366860).

2. The appeal was listed for mandatory conciliation on 12-13 May 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. Following the conciliation, amended plans and documentation was prepared and agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. 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). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application was notified to adjoining and proximate properties. Further, a number of adjoining residents addressed the Court as part of the onsite component of the proceedings. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

3. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. On 28 February 2022, the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 was repealed and replaced by ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP (Biodiversity and Conservation)) which commenced on 1 March 2022. By reference to the statement of environmental effects which accompanies the development application, I am satisfied that the proposal does not result in the removal of any native vegetation and that the considerations in ch 3 of SEPP (Biodiversity and Conservation) are satisfied.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP RH. The Statement of Environmental Effects includes a review of the site history which indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

6. The land is within the Coastal Environmental Area and Coastal Use Area maps made pursuant to SEPP RH. The statement of environmental effects and the Council assessment report both conclude that the development application meets the requirements of the now cll 2.10 and 2.11 of SEPP RH. I agree with and accept this conclusion. Specifically, in determining the development application, I have given consideration to the matters for consideration at cll 2.10 and 2.11 of SEPP RH. Further, pursuant to cll 2.10(2) of SEPP RH I am satisfied on the evidence that the development is designed, sited and will be managed to avoid an adverse impact on the following matters listed at cll 2.10(1) and 2.11(1)(b) of SEPP RH.

7. Pursuant to the provisions of the Warringah Local Environmental Plan 2011 (LEP 2011) the site is zoned R2 Low Density Residential Development. The proposed development, dwelling house, is permitted with consent in the zone. In determining the development application, I have given consideration to the zone objectives.

8. The proposed development is compliant with the maximum height standard applicable pursuant to cl 4.3 of LEP 2011.

9. The site is identified in the maps associated with LEP 2011 as being affected by class 5 acid sulfate soils. Excavation is proposed below the existing site levels (being at approx. RL 7 AHD) which is above AHD RL 5.00. The development application is accompanied by a geotechnical assessment prepared by STS GeoEnvironmental Pty Ltd dated December 2018 which addresses acid sulfate soils and concludes that the development is unlikely to intersect with acid sulfate soil. I am satisfied that that the proposed development addresses the considerations within cl 6.1 of LEP 2011 and the site is suitable for the development proposed.

10. In determining the development, I have given consideration to the matters at cl 6.2(4) of LEP 2011 in relation to earthworks and I find that none raise issue that would warrant the refusal of the application.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court notes that:

1. Northern Beaches Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application Number DA2021/1140 with the following plans and documents:

Architectural Plans - Endorsed with Council's stamp
Drawing No.		Dated		Prepared By
DA000	Cover Page	Rev E 16 May 2022		Breakspear Architects
DA001	BASIX	Rev D 16 May 2022		Breakspear Architects
DA103	Demolition Plan	Rev C 16 May 2022		Breakspear Architects
DA104	Excavation and Fill Plan	Rev F 16 May 2022		Breakspear Architects
DA105	Erosion and Sediment Control Plan	Rev E 16 May 2022		Breakspear Architects
DA200	Roof Plan	Rev K 16 May 2022		Breakspear Architects
DA201	First Floor Plan	Rev K 16 May 2022		Breakspear Architects
DA202	Ground Floor Plan	Rev K 16 May 2022		Breakspear Architects
DA203	Basement Floor Plan	Rev K 16 May 2022	Breakspear Architects
DA300	North Elevation	Rev I 16 May 2022		Breakspear Architects
DA301	South Elevation	Rev I 16 May 2022		Breakspear Architects
DA302	East / West Elevation	Rev I 16 May 2022		Breakspear Architects
DA400	Sections	Rev I 16 May 2022		Breakspear Architects
DAS00	Schedule of Colours and Materials	Rev D 16 May 2022		Breakspear Architects

Reports/ Documentation - All recommendations and requirements contained within:
ReportNo./PageNo.ISectionNo.	Dated	Prepared By
BASIXCertificateNo.1204405S_02	16 May 2022	Breakspear Architects Pty Ltd
Supplementary Report – Geotechnical Investigation, Acid Sulphate Soil Assessment & Preliminary Landslip Report	29 April 2022	STS GeoEnvironmental
Geotechnical Investigation, Acid Sulfate Soils Assessment and Preliminary Landslip Assessment	December 2018	STS GeoEnvironmental

Landscape Plans
Drawing No.	Dated	Prepared By
DA901 Landscape Plan	Rev. H 16 May 2022	Breakspear Architects

2. The amended development application documents were lodged on the NSW Planning Portal on 1 June 2021 (reference PEH-1178).

3. The amended development application was filed with the Court on 26 May 2022.

8. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Development Application DA2021/1140 for the demolition of the existing dwelling house and construction of a new dwelling house at 72 Carrington Parade, Curl Curl (Lot 1 DP 366860), subject to the conditions including the deferred commencement condition A1 contained in Annexure A.

……………………

D M Dickson

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 17 June 2022