Comino v Northern Beaches Council

[2022] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:

Comino v Northern Beaches Council [2022] NSWLEC 1227

Hearing dates:

Conciliation conference on 29 April 2022

Date of orders:

03 May 2022

Decision date:

03 May 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 2021/2075 for alterations and additions to an existing dwelling house, at 22 Ocean Road, Palm Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2000 cl 55

Environmental Planning and Assessment Regulation 2021 cl 3 of Sch 6

State Environmental Planning Policy (Resilience and Hazards) 2021 Part 2.2 Div 3, cl 2.10

Pittwater Local Environmental Plan 2014 cll 4.3, 4.4, 5.21, 7.5

Category:

Principal judgment

Parties:

Victor Comino (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/32824

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2021/2075 for alterations and additions to an existing dwelling house (the proposal), at 22 Ocean Road, Palm Beach (Lot 71 in DP 6746) (the site), by Northern Beaches Council (the Council).

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 29 April 2022. I presided over the conciliation conference. 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.

3. Under s 34(3) of the 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

5. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged with the Council on 10 November 2021, the application was refused on 31 January 2022, the Class 1 application was filed with the Court on 4 February 2022 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

6. The Council, as the relevant consent authority, agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application to reduce the height of the proposed roof. The amended development application was lodged on the NSW planning portal on 21 April 2022 and filed with the Court.

7. The site is zoned R2 Low Density Residential pursuant to Pittwater Local Environmental Plan 2014 (LEP 2014) (Land Zoning Map – Sheet LZN_015 of LEP 2014) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

8. The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Buildings Map Sheet HOB_015 of LEP 2014). The proposal complies with the height of buildings development standard.

9. There is no floor space ratio (FSR) development standard for the site (cl 4.4 of LEP 2014).

10. The site is identified as flood affected land pursuant to cl 5.21 of LEP 2014. I accept the Council’s submission that the proposal has been assessed in relation to the requirements of this clause, and the Council is satisfied that the works proposed to the existing ground floor are very minor. I am satisfied that the proposal is compatible with the flood function and behaviour of the land; that it will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; that it incorporates appropriate measures to manage risk to life in the event of a flood; and that it will not adversely affect the environment.

11. The site is identified on the Coastal Risk Planning Map, pursuant to cl 7.5(2) of LEP 2014. I accept the Council’s submission that the proposal has been assessed in relation to the requirements of this clause and the Council is satisfied that the works proposed to the existing ground floor are very minor, and so the proposal will not increase coastal risks or alter coastal processes.

12. The site is within the coastal environment area pursuant to Pt 2.2, Div 3 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). I accept the Council’s submission that the proposal has been assessed in relation to this clause and the Council is satisfied that the proposal will not cause an adverse impact on the surrounding coastal area because that the proposal is designed, sited and will be managed to avoid an adverse impact on the matters listed under cl 2.10(1) of SEPP RH.

Conclusion

13. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 27 April 2022, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/2075 for alterations and additions to an existing dwelling house, at 22 Ocean Road, Palm Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (203147, pdf)

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