Bushell v Northern Beaches Council

[2022] NSWLEC 1397

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bushell v Northern Beaches Council [2022] NSWLEC 1397

Hearing dates:

Conciliation conference on 18 and 19 July 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the documents described in Annexure ‘A’.

(2) The appeal is upheld.

(3) Approval is granted to Modification Application no. MOD2021/1009 to modify development consent no. DA2020/0211 granted by the Respondent on 15 September 2020 at 82-84 Bower Street, Manly (Lot 5/DP 8075) subject to the conditions at Annexure ‘B’ to this agreement.

(4) As a consequence of Order (3) above, Development Application No. 2020/0211 granted by the Respondent on 15 September 2020 is now in the form of Annexure ‘C’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, div 4.8

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2012, cl 1.2

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy (April 2021)

Manly Development Control Plan 2013

Northern Beaches Council, Northern Beaches Community Participation Plan (2019)

Category:

Principal judgment

Parties:

Michael Bushell (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
L Nupuri (Respondent)

Solicitors:
Swaab Attorneys (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/97178

Publication restriction:

No

Judgment

1. COMMISSIONER: Michael Bushell (the Applicant) has appealed the refusal by Northern Beaches Council (the Respondent) of its modification application MOD2021/1009, made with owner’s consent, seeking amendment to a consent granted by the Respondent to development application DA202/0211 (the Proposed Modification) at 82-84 Bower Street, Manly (the Subject Site).

2. The Proposed Modification seeks approval of alternation and additions in relation to privacy screening to the rear balcony on the Subject Site.

3. The appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.55(2) of the EP&A Act.

4. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and the Northern Beaches Community Participation Plan 2019, the Proposed Modification was placed on public exhibition for 14 days by the Respondent between 4 and 18 February 2022, and one submission was received in response to that notification.

5. A site inspection was undertaken at the commencement of the proceedings, consistent with the Court’s COVID-19 Pandemic Arrangements Policy. One objector submission was received from the owners of an adjoining property in relation to the appeal.

6. On 18 and 19 July 2022, the Parties participated in a conciliation conference undertaken via Microsoft Teams. At that conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s modification application, subject to conditions.

7. The Parties’ agreement included a requirement that, inter alia, the following condition 2A be imposed with approval of the Proposed Modification:

“The development must be carried out in compliance (except as amended by any other condition of consent) with the following:

a) Approved Modified Plans

Architectural Plans – Endorsed with Council’s Stamp
Plans	Dated	Prepared By
Screen Details, Revision G – 15_117 S4.55-A-203	18 July 2022	Smith & Tzannes
Ground Floor, Revision F – 15_117 s.4.55-A-101	19 July 2022	Smith & Tzannes

Reason: To ensure the work is carried out in accordance with the determination of Council and approved plans.”

8. I note that the plan entitled ‘Screen Details, Revision G – 15_117 S4.55-A-203’ included the following detail of the privacy screens that are to be installed as a requirement of condition 2A:

9. I further note that the plan entitled ‘Ground Floor, Revision F – 15_117 s 4.55-A-101’ includes the following detail in relation to the size and locations of certain round planter containers that are to be installed at the north-west corner of the balcony at ground level to restrict view lines from the balcony to an adjacent property:

10. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

11. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. consistent with the provisions of s 4.55(2) of the EP&A Act, I am satisfied that:

1. the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified; and

2. there are no conditions of consent to which the development, as approved, nor in relation to the Proposed Modification, that are imposed as a requirement of a concurrence from a relevant Minister, public authority or approval body (within the meaning of div 4.8 of the EP&A Act in relation to Integrated Development) or in accordance with the general terms of an approval proposed by the approval body; and

3. the Respondent has notified the application in accordance with the relevant provisions of the EP&A Regulation and Northern Beaches Community Participation Plan 2019; and

4. the submissions made concerning the Proposed Modification within the period prescribed by the regulations or provided by the provisions of Manly Development Control Plan 2013 (MDCP) have been considered;

2. consistent with the provisions of cl 1.2(a)(iv) of Manly Local Environmental Plan 2013, I am satisfied that the Proposed Modification responds to environmental constraints and does not adversely affect the character, amenity or heritage of Manly or its existing permanent residential population;

3. the Proposed Modification is compliant with the privacy controls in clause 3.4.2.2 of MDCP, and is consistent with the privacy objectives of clause 3.4.2 of MDCP, noting that the Parties agree that:

1. the privacy screens and proposed planter containers on the rear balcony of the property that are the subject of the Parties’ agreement:

1. will limit overlooking of nearby properties, in particular the property adjacent to the Subject Site to its west;

2. will be fixed in position and suitably angled to protect visual privacy;

2. the privacy screens and proposed planter containers that are the subject of the Parties’ agreement will:

1. minimise the loss of privacy to the adjacent development to the west; and

2. balance outlook and views from habitable rooms and private open space;

12. Having considered the advice of the Parties, provided above at [11], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act including in relation to the submission of the objectors which is a relevant consideration under s 4.15(1)(d) of that Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EP&A Act have been so satisfied.

13. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

14. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

15. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

16. The Court notes that:

1. the Council, as the relevant consent authority, has agreed pursuant to cl 55 of the EP&A Regulation to amend Development Application No. DA2020/0211;

2. the amended plans and documents were uploaded on the NSW Planning Portal on 19 July 2022 and were filed with the Court on 20 July 2022 as described in Annexure ‘A’.

Orders

17. The Court orders that:

1. The Applicant is granted leave to rely on the documents described in Annexure ‘A’.

2. The appeal is upheld.

3. Approval is granted to Modification Application no. MOD2021/1009 to modify development consent no. DA2020/0211 granted by the Respondent on 15 September 2020 at 82-84 Bower Street, Manly (Lot 5/DP 8075) subject to the conditions at Annexure ‘B’ to this agreement.

4. As a consequence of Order (3) above, Development Application No. 2020/0211 granted by the Respondent on 15 September 2020 is now in the form of Annexure ‘C”.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (89956, pdf)

Annexure B (180245, pdf)

Annexure C (208686, pdf)

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Amendments

05 August 2022 - Pursuant to UCPR r 36.17, the Court amends the Court orders to correct a typographical error in Order 4 by deleting “15 September 2022” and inserting “15 September 2020”.

Decision last updated: 05 August 2022