Braams v Lake Macquarie City Council

[2021] NSWLEC 1085

Land and Environment Court

New South Wales

Medium Neutral Citation:

Braams v Lake Macquarie City Council [2021] NSWLEC 1085

Hearing dates:

14 January 2021

Date of orders:

19 February 2021

Decision date:

19 February 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application to rely upon the amended architectural plans referred to in Condition 2 of Annexure A.

(2) The appeal is upheld.

(3) Development Application No. DA/1513/2019 for demolition of existing structures, alterations and additions to existing dwelling, construction of multi dwelling housing comprising 11 dwellings, construction of pool and subdivision is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – alterations and additions – conciliation agreement – agreement between the parties – orders

Legislation Cited:

Coal Mine Subsidence Compensation Act 2017, s 22

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49, Sch 1

Lake Macquarie Local Environmental Plan 2014, cll 4.3, 5.10, 7.1, 7.2, 7.21

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Infrastructure) 2007, cll 85, 45

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Garry Braams (Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor) (Applicant)
M Smith (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Lake Macquarie City Council (Respondent)

File Number(s):

2020/270325

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Garry Braams (the Applicant) against the Respondent’s deemed refusal of his development application DA/1513/2019. The development application seeks consent for demolition of the existing structures, alterations and additions to the existing dwelling, construction of multi dwelling housing (comprising 11 dwellings), construction of a pool and subdivision. The development is proposed at 87-89 Railway Street, Teralba (Lot 41 DP 1138394 and Lot 1 DP 797014).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for conciliation on 14 January 2021 in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 February 2021.

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. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000, consent has been provided by the owners of the land the subject of the Development Application.

2. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, I am satisfied it is unlikely to be contaminated.

3. The development application falls within the provision of cl 85 of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) due to its proximity to the rail line. The development application was referred to Sydney Trains who responded confirming they have no objection to the application subject to the imposition of certain conditions. The relevant conditions are incorporated at Annexure A.

4. The development also falls within cl 45 of ISEPP due to its proximity to electrical infrastructure. The development was referred to Ausgrid who raise no objection to the grant of consent to the development application.

5. The development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

6. Pursuant to Lake Macquarie Local Environmental Plan 2014 (LEP 2014) the site is zoned R3 Medium Density Development. Multi dwelling housing, alterations and additions, and subdivision are all permissible in the zone. In determining the development application, I have had regard to the objectives of the zone

7. The development complies with the height of buildings standard (cl 4.3 of LEP 2014).

8. Whilst the subject site in proximity to a heritage item listed in the LEP 2014, I am satisfied the development will not have a detrimental impact on its significance: cl 5.10(4) LEP 2014.

9. Clause 7.1 ‘Acid Sulfate Soils’ of LEP 2014 applies to the site which is mapped as potential Class 5. I am satisfied that the works are not of a scale that would result in lowering of the water table below 1AHD, nor is the site within 500m of adjacent Class 1, 2, 3, or 4 land.

10. Clause 7.2 ‘Earthworks’ of LEP 2014 applies to the site. After reviewing the documents supporting the development application, I am satisfied that the proposed development meets the requirements of cl 7.2(3) of LEP 2014.

11. Pursuant to cl 7.21 I am satisfied that the services that are essential for the development are available, or adequate arrangements have been made to make them available when required.

12. The subject site is with a mine subsidence district. The application was referred to Subsidence Advisory NSW, who granted approval pursuant to s 22 of the Coal Mine Subsidence Compensation Act 2017.

13. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the application to rely upon the amended architectural plans referred to in Condition 2 of Annexure A.

2. The appeal is upheld.

3. Development Application No. DA/1513/2019 for demolition of existing structures, alterations and additions to existing dwelling, construction of multi dwelling housing comprising 11 dwellings, construction of pool and subdivision is approved subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (235244, pdf)

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Decision last updated: 19 February 2021