Confos v Lane Cove Municipal Council

[2022] NSWLEC 1477

Land and Environment Court

New South Wales

Medium Neutral Citation:

Confos v Lane Cove Municipal Council [2022] NSWLEC 1477

Hearing dates:

Conciliation conference 2 September 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) The Applicant’s written request prepared by Tony Moody Planning and Development and dated 31 August 2022 under clause 4.6 of Lane Cove Local Environmental Plan 2009 to vary the height of buildings development standard in clause 4.3 of the Lane Cove Local Environmental Plan 2009 is upheld.

(3) The Applicant’s written request prepared by Tony Moody Planning and Development and dated 12 August 2022 under clause 4.6 of Lane Cove Local Environmental Plan 2009 to vary the floor space ratio development standard in clause 4.4 of the Lane Cove Local Environmental Plan 2009 is upheld.

(4) Development consent is granted to Development Application No 174/2021 for alterations and additions to the existing dwelling including the construction of a new ground floor level on the land at 16A Brooks Street, Linley Point, subject to the conditions annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION — Alterations and additions to an existing dwelling – amended plans – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Civil Procedure Act 2005 s 26

Environmental Planning and Assessment Act 1979 ss 4.15 ,4.16, 8.7

Environmental Planning and Assessment Regulation 2000 cll 49, 55

Land and Environment Court Act 1979 ss 34, 34AA

Lane Cove Local Environmental Plan 2009 cll 2.7, 4.3, 4.4, 4.6, 6.1A

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Pt 10.3, Div 2, Ch 10, ss 10.2, 10.10, Schs 9-12

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.11, 2.12, 4.6

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Ashlee Michelle Confos (Applicant)
Lane Cove City Council (Respondent)

Representation:

Counsel:
S Griffiths, (Solicitor) (Applicant)
A Seton, (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/187049

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/174/2021) by Lane Cove City Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended, the development application seeks consent for alterations and additions to an existing dwelling house, including internal alterations, a new terrace and the creation of a new ground floor level. The development is proposed at 16A Brooks Street, Linley Point (Lot 4 DP 255201).

2. The proceedings were listed for mediation pursuant to s 26 of the Civil Procedure Act 2005 on 17 August 2022. Following the mediation, discussion continued between the parties. The proceedings were listed for conciliation pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 2 September 2022. I presided at the conciliation conference. As a result of the discussions at the conciliation, amended plans and documentation were prepared and agreement was reached between the parties. That agreed decision is that the appeal is upheld 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 Applicant is the registered proprietor of the land and provides her consent to the lodgement of the development application in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (Regulation 2000).

2. The development application was notified to adjoining and nearby owners for a period of 16 days in November 2021. Further, at the commencement of the matter on site a resident addressed the Court outlining their concerns. 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 the amendment to the application or through 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 1 March 2022, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 was repealed and its provisions transferred to Ch 10 and Schs 9-12 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). The site is identified as being within the Sydney Harbour Catchment on the relevant map referred to in s 10.2 of SEPP B&C. In determining the development application, I have considered the planning principles in s 10.10 of SEPP B&C as relevant to the application and I am satisfied that the proposed development is consistent with the relevant principles. Further I have taken into consideration those matters of relevance within Div 2 of Pt 10.3 of SEPP B&C and I am satisfied that none warrant the refusal of the application.

5. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is identified as being within both the coastal environment area and the coastal use area on the relevant map. However, as the site is within the Foreshore and Waterways area of SEPP B&C, ss 2.10 and 2.11 of SEPP RH which address coastal environment area and coast use areas do not apply. Pursuant to s 2.12 of SEPP RH, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on the site or other land.

6. Pursuant to s 4.6 of SEPP RH prior to the grant of consent I am required to consider whether the land is contaminated. The Statement of Environmental Effects which accompanies the development application states that the site has a lengthy history of residential use and concludes that it is not likely that the site is contaminated. I am satisfied on the basis of the longstanding residential use of the site it is unlikely to be contaminated and is suitable for the proposed use.

7. The proposed development is subject to the provisions of Lane Cove Local Environmental Plan 2009 (LEP 2009). Pursuant to LEP 2009 the site is zoned R2 Low Density Residential. Development for the purposes of dwelling houses is permitted with consent in the zone. Demolition is permissible: cl 2.7 of LEP 2009. In determining the development application, I have given consideration to the zone objectives.

8. The site is subject to a maximum height limit of 8.5m: cl 4.3 of LEP 2009. The proposed development has a maximum height of 9.975m and relies on the provisions of cl 4.6 of LEP 2009 and has prepared a written request seeking to vary the maximum height development standard. I have read the written request prepared by Tony Moody Planning and in accordance with cl 4.6 of LEP 2009, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of the LEP). In particular, I accept that the variation is minor in nature and that it will not generate any unreasonable adverse impacts on the adjoining property or public land.

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP). In particular, I am satisfied that the breaching element (the vergola) provides a benefit to the existing dwelling of improved amenity and a reduction in heat load to the existing glazing reducing demand on summer cooling.

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2009 and the objectives of the R2 Low Density Residential zone.

4. Pursuant to cl 4.6(5) of LEP 2009, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. The states of satisfaction required by cl 4.6 of LEP 2009 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

9. The site is subject to a maximum floor space ratio (FSR) control of 0.5:1: cl 4.4 of LEP 2009. The proposed development has an FSR of 0.62:1 and relies on the provisions of cl 4.6 of LEP 2009 and has prepared a written request seeking to vary the maximum FSR development standard. I have read the written request prepared by Tony Moody Planning and in accordance with cl 4.6 of LEP 2009, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of the LEP). In particular, I am satisfied that the additional floor space is not inconsistent with the achievement of the objectives of the standard as it is contained under the existing dwelling and is compatible with the character of the locality.

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP). In particular, I am satisfied that the additional floor area promotes good design and the orderly and economic use of the land for the reasons outlined in the written request. I accept and adopt those reasons in reaching the state of satisfaction.

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.4 of LEP 2009 and the objectives of the R2 Low Density Residential zone.

4. Pursuant to cl 4.6(5) of LEP 2009, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. The states of satisfaction required by cl 4.6 of LEP 2009 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR control.

10. In determining whether development consent should be issued, I have considered the matters at cl 6.1A: Earthworks of LEP 2009 and I am satisfied none warrant the refusal of the development application.

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, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. In making the orders, the Court also notes that:

1. Lane Cove Council, as the relevant consent authority, has agreed under cl 55 of Regulation 2000 to the Applicant amending Development Application No 174/2021 to rely upon the following plans and documents:

1. Revised Clause 4.6 Request for Variation of Height of Buildings Standard in clause 4.3 of the Lane Cove Local Environmental Plan 2009, prepared by Tony Moody Planning and Development and dated 31 August 2022.

2. Revised Clause 4.6 Request for Variation of Floor Space Ratio Standard in clause 4.4 of the Lane Cove Local Environmental Plan 2009, prepared by Tony Moody Planning and Development and dated 12 August 2022.

3. Area Calculation Diagrams – Sheet 1, Drawing No. D-01, Revisions [03], Dated 30 July 2022, prepared by N2 Studio;

4. Area Calculation Diagrams – Sheet 2, Drawing No. D-02, Revisions [03], Dated 30 July 2022, prepared by N2 Studio;

5. Proposed North Elevation, Drawing No. L-06, Revision [04], dated 25 August 2022, prepared by N2 Studio;

6. East Elevation / Section A-A, Drawing No. L-11, Revision [03], dated 25 August 2022, prepared by N2 Studio;

7. Section 2-2 – Sheet 1, Drawing L-12, revision [04] dated 25 August 2022, prepared by N-2 Studio;

8. Section 2-2 – Sheet 2, Drawing L-12, revision [04] dated 25 August 2022, prepared by N-2 Studio;

9. Cross Sections B-B and X-x, Drawing No. L-14 Revision [04], dated 25 August 2022, prepared by N-2 Studio;

10. Plans of Levels and Detail over 16A Brooks Street, Linley Point, Drawing No. 16020_LD, sheet 1 of 1, dated 24 August 2022, prepared by Cibar Surveying Pty Ltd; and

11. Additional Reduced Levels as requested by Council, Drawing No. SK-24, dated 26 August 2022, prepared by N-2 Studio.

2. The amended plans and documents referred to above were lodged on the NSW Planning Portal.

8. The Court orders that:

1. The appeal is upheld

2. The Applicant’s written request prepared by Tony Moody Planning and Development and dated 31 August 2022 under clause 4.6 of Lane Cove Local Environmental Plan 2009 to vary the height of buildings development standard in clause 4.3 of the Lane Cove Local Environmental Plan 2009 is upheld.

3. The Applicant’s written request prepared by Tony Moody Planning and Development and dated 12 August 2022 under clause 4.6 of Lane Cove Local Environmental Plan 2009 to vary the floor space ratio development standard in clause 4.4 of the Lane Cove Local Environmental Plan 2009 is upheld.

4. Development consent is granted to Development Application No 174/2021 for alterations and additions to the existing dwelling including the construction of a new ground floor level on the land at 16A Brooks Street, Linley Point, subject to the conditions annexed hereto and marked “A”.

…………………

D M Dickson

Commissioner of the Court

22.187049 Annexure A (217187, pdf)

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Decision last updated: 12 September 2022