Coffey v Northern Beaches Council

[2023] NSWLEC 1655

Land and Environment Court

New South Wales

Medium Neutral Citation:

Coffey v Northern Beaches Council [2023] NSWLEC 1655

Hearing dates:

Conciliation Conference on 25 September 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application No DA-2022/1351, as amended, for demolition works and construction of a new two-storey dwelling house with an attached garage at 17 Woods Parade, Fairlight NSW 2094, being Lot 2 DP 5630, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition works – construct new dwelling house – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Sch 1, Div 2, cl 7

Environmental Planning and Assessment Regulation 2021, s 38

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

Manly Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.1, 6.2, 6.4, 6.8, 6.9

Texts Cited:

Department of Planning and Environment, Planning Circular PS 18-003, 2018

Category:

Principal judgment

Parties:

Philip Matthew Coffey (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/109645

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2022/1351 (the Application) for demolition works and construction of a new two-storey dwelling house with an attached garage (the Proposal) at 17 Woods Parade, Fairlight NSW 2094, being Lot 2 DP 5630 (the Site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on Site. I presided over the conciliation conference.

3. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to DA2022/1351, as amended, with conditions.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an Agreed Jurisdictional Statement (the Statement) provided by the parties. The statutory planning controls relevant to the Site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

State Environmental Planning Instruments (SEPPs)

7. The parties agreed and I accept their analysis and conclusions in the Statement, that the jurisdictional prerequisites of the following SEPPs, to the extent applicable to the proposed development at the Site, are satisfied:

• State Environment Planning Policy (Building Sustainability Index: BASIX) 2004

• State Environmental Planning Policy (Transport and Infrastructure) 2021

• State Environmental Planning Policy (Resilience and Hazards) 2021

• State Environmental Planning Policy (Biodiversity and Conservation) 2021

Manly Local Environmental Plan 2013 (MLEP)

8. The Site is zoned “R1 General Residential” under the MLEP. The Proposal is permissible with consent in this zone.

Height of Buildings (cl 4.3)

9. The height of any building on the Site cannot exceed 8.5 metres pursuant to cl 4.3 of the MLEP. The proposed dwelling exceeds the height in a small portion, within the roof form above the living area on the Woods Parade frontage of the Site. The exceedance is by 1.3m, representing a 13% variance. The proposed dwelling otherwise complies with the height limit.

10. The Applicant filed an Updated Clause 4.6 Request to Vary the Height Limit, prepared by Nexus Environmental Planning Pty Ltd and dated 25 July 2023. This addressed the Council’s Contention regarding height in the SOFAC dated 1 May 2023. Council accepted that with minor changes to the plans, compliance with the development standard is unreasonable or unnecessary and the parties agreed that the matters required to be demonstrated under cl 4.6(3) and cl 4.6(4) of the MLEP are met such that the Request is upheld. The Court accepted the parties position and the cl 4.6 request for the minor non-compliance to the height of buildings standard is upheld and consent can be granted to the Proposal.

Heritage Conservation (cl 5.10)

11. The Application is accompanied by a Heritage Impact Assessment prepared by Dawbin Architects Pty Ltd dated 28 November 2022 (HIA).

12. The existing dwelling on the Site, is not a heritage item under the MLEP. The parties agree with the conclusion in the HIA, that:

“While it is acknowledged that the building has some heritage values, it is considered that the building has an insufficient level of significance to achieve a threshold level for listing.”

13. A condition has been imposed to require a photographic archival record of the Site.

14. Additionally, the Site adjoins a heritage item and is within the vicinity of a group of heritage listed items being; Item I2 – Stone Kerbs (sandstone kerbs are heritage listed within the former Manly municipal area) and Item I51 – Group of 3 houses (21-25 Fairlight Street, Fairlight) under Sch 5 of the MLEP. The parties agree that the Proposal will not affect the heritage significance of those items.

15. The parties agree in accordance with the above, the Proposal does not propose any non-compliance with the heritage requirements of cl 5.10 of the MLEP.

Acid Sulfate Soil (cl 6.1)

16. The Site is identified as affected by Class 5 Acid Sulfate Soils.

17. The Geotechnical Report, prepared by Greywacke Geotechnics and dated 2 September 2022 (Geotech Report), concludes that occurrence of Acid Sulfate Soils on the Site is low, and that the proposed development and construction activities for the Proposal are not likely to be affected by Acid Sulfate Soils materials. The parties agree that no Acid Sulfate Soils Management Plan is required.

Earthworks (cl 6.2)

18. The Proposal includes earthworks and construction activities at the Site including demolition of existing structures; excavation of soil and rock for the lower ground and structural footings; and construction of the proposed dwelling. The parties agree that these works are ancillary to the Proposal, which is permissible with consent under the MLEP.

19. The Parties agree that the various matters set out in cl 6.2 of the MLEP have been considered, and that appropriate conditions of consent are proposed with respect to the earthworks.

Stormwater management (cl 6.4)

20. The parties agree that the Proposal satisfies the requirements of cl 6.4 of the MLEP.

Landslide Risk (cl 6.8)

21. The Application includes a Preliminary Landslip Risk Assessment contained within the Geotech Report. The Risk Assessment demonstrates the overall risk of slope instability across the Site is very low for excavations up to 2m, and as such the Proposal is suitable for construction.

22. The parties agree that the Proposal addresses the requirements of cl 6.8 of the MLEP, and that appropriate conditions of consent are proposed with respect to those requirements.

Foreshore Scenic Protection Area (cl 6.9)

23. The parties agree that the matters set out in cl 6.9(3) have been considered, and that the Proposal is suitable given its type, location, design and its relationship with and impact on the foreshore.

Notification and Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

24. The Application, in its original form, was first notified and advertised from 30 September 2022 to 14 October 2022, and three submissions were received.

25. The Application as amended, was informally notified to those persons who had initially made submissions, from 25 August 2023 to 1 September 2023, and one submission was received.

26. The immediate neighbour uphill to the north requested to address the Court at the s 34AA on site and the neighbour’s view impact concerns were inspected by the Court and parties from the neighbours’ upper floor. The Applicant in the amended plans had adjusted elements of the roof form to take into account the neighbour’s reasonable concerns on view impact. I am satisfied that the resident objectors were accorded procedural fairness.

Conclusion

27. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations

28. The Court notes that:

1. Northern Beaches Council, the Respondent, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-2022/1351 in accordance with the following documents:

1. Revision D Architectural Plans, prepared by Catherine Finlay of DBCF Pty Ltd and dated 20 July 2023.

2. An amended BASIX Certificate, No. 1325827S_02, prepared by Thermal Performance and dated 27 July 2023.

3. Landscape Plans, prepared by Serenescapes and dated 3 August 2023.

2. The applicant is granted leave to rely on the amended application in accordance with the documents listed at [28(1)] above.

3. The Applicant filed the amended Development Application with the Court on 22 September 2023.

4. The Applicant’s written request under cl 4.6 of the Manly Local Environmental Plan 2022 (MLEP) to vary the height of buildings development standard under cl 4.3 of the MLEP for the proposed development, being demolition works and construction new two-storey dwelling house with an attached garage, is upheld.

Orders

29. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application No DA-2022/1351, as amended, for demolition works and construction of a new two-storey dwelling house with an attached garage at 17 Woods Parade, Fairlight NSW 2094, being Lot 2 DP 5630, subject to the conditions of consent in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 07 November 2023