Conway v Tweed Shire Council

[2023] NSWLEC 1347

Land and Environment Court

New South Wales

Medium Neutral Citation:

Conway v Tweed Shire Council [2023] NSWLEC 1347

Hearing dates:

Conciliation Conference 19 June 2023

Date of orders:

05 July 2023

Decision date:

05 July 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to DA22/0804 for alterations and additions to the lower and upper floor of an existing dwelling house and granny flat at 4 Eclipse Lane, Casuarina NSW 2487, which converts the structure back to a single dwelling house, and the use of certain works to the lower floor of the dwelling which have been constructed without consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, cl 38

Land and Environment Court Act 1979, s 34

Tweed Local Environmental Plan 2000

Tweed Local Environmental Plan 2014, cll 5.11, 7.1

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Category:

Principal judgment

Parties:

Vashti Elizabeth Conway (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
F Berglund (Respondent)

Solicitors:
Yates Beaggi Lawyers (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2023/92375

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA 22/0804 for alterations and additions to an existing two-storey residential dwelling (the Proposed Development) at 4 Eclipse Lane Casuarina legally described as Lot 85 in DP1030322 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 19 June 2023. I have 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. The parties identified that all jurisdictional prerequisites of relevance in these proceedings have been satisfied in order for this function to be exercised. The parties explained that the consent sought relates to only internal changes to an existing dwelling and attached secondary dwelling or “granny flat” and all development standards are complied with.

7. I have referred to the Statement of Environmental Effects (SEE) filed by the Applicant on 19 June 2023 which confirms that

“there is no change to the existing height of the building which is less than 9m as required by HOB Maps (LEP 2014 Part 4.3) (…) Floor space controls remain well below the permissible 0.8:1 restrictions at proposed 0.5:1 (LEP 2014 Part 4.4)”

8. The Class 1 Application filed with the Court includes written consent from the owner of the Site who is also the Applicant of these proceedings.

9. In accordance with the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 12 April 2023, the Site consists of two land zonings in accordance with the Tweed Local Environmental Plan 2014 (TLEP) and Tweed Local Environmental Plan 2000, being R2 Low Density Residential (where the dwelling is located and where the Proposed Development will take place) and deferred matter - 7F Environmental Protection Coastal Lands at the rear of the Site and I note that no works are proposed within the 7F zone.

10. The Site is mapped and identified in accordance with the TLEP as follows:

1. Class 4 Acid Sulfate Soils (cl 7.1) however I am satisfied that the Proposed Development does not propose works more than 2 metres below the natural ground surface nor propose any works by which the water table is likely to be lowered more than 2 metres below the natural ground surface.

2. Bushfire Prone – Vegetation Buffer (cl 5.11) and in that regard, the Applicant has provided a Bushfire Assessment Report dated 20 February 2023 filed with the Class 1 Application. In relation to bushfire risk, the SEE provides as follows on page 4:

“The house is an existing dwelling, located within a vegetation buffer zone. The original design has provided a managed vegetation buffer between the house and the sand dunes to address the bushfire risk. The proposed changes are largely aesthetic and utilise non combustible materials, or involve internal structural changes. The proposed modifications will not increase the risks to the property.”

11. The Proposed Development is required to comply with the relevant provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The SEE addresses these provisions as follows:

“The development complies with Chapter 2 Coastal Management of SEPP Resilience and Hazards) 2021 as it is largely aesthetic external changes to an existing building and the existing coastal management polices (sic) are maintained through no change to landscaping or land zoned 7(F) Environment Protection. In maintaining the objectives of Division 4, the building design and bulk is retained existing. The proposed external cladding is in keeping with precedents in the existing street scape. The site is not heritage classified and maintains adequate private open space and deep soil calculations. The adjacent site access to the beach in maintained as are any view lines to the beach.

In reference to SEPP (Biodiversity and Conservation) 2021, the proposal is to maintain vegetation and native habitat with no change to the existing landscaping, and no works within the 7(F) Environmental Protection Zone on the site. The buffer between built form and coast line is retained.”

12. I am also satisfied that there is no change of use of the land as residential and there is nothing before the Court to suggest that the land is contaminated (s 4.6, Resilience and Hazards SEPP).

13. The parties agree that the contentions raised in the SOFAC are resolved by the conditions of consent, in particular conditions 12 and 42 which provide as follows:

“12. Prior to the issue of the construction certificate a NCC - BCA Compliance report of unauthorised building works the subject of this development consent is to be assessed by the appointed certifier. Details of any rectification works in respect of defects as identified in the above mentioned NCC - BCA Compliance report is to be assessed by the appointed certifier and is to be subject to a construction certificate.”

“42. Prior to the issue of an occupation certificate a Building Information Certificate is to be obtained from Tweed Shire Council in respect of the works relating alterations to the development which were constructed without prior consent - subject of this development consent. The Building Information Certificate Application is to include certification of the above works complying with the requirements of the BCA Volume 2.”

14. 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.

15. 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.

Notations:

16. The Court notes that:

1. Tweed Shire Council, as the relevant consent authority, has agreed under clause 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA22/0804 in accordance with the documents listed below, which have been uploaded to the NSW Planning Portal:

1. Amended architectural plans prepared by Integrated Design Group Pty Ltd (IDG) listed as follows:

Issue	Title	Drawn by	Dated
D	0001 – Cover Page	IDG	-
C	0002 – Site Analysis	IDG	15.02.2023
D	0003 – BASIX Commitments	IDG	15.06.2023
G	0100 – Site Plan	IDG	15.06.2023
F	0101 – Survey	IDG	15.06.2023
F	0200 – Demolition Plan	IDG	19.06.2023
F	1100 – Ground Floor Plan	IDG	15.06.2023
F	1101 – First Floor Plan	IDG	15.06.2023
F	1102 – Roof Plan	IDG	15.06.2023
F	2000 – West Elevation	IDG	15.06.2023
F	2001 – North Elevation	IDG	15.06.2023
G	2002 – East Elevation	IDG	15.06.2023
F	2003 – South Elevation	IDG	15.06.2023
F	3000 – Section A	IDG	15.06.2023
F	3001 – Section B	IDG	15.06.2023

2. BASIX Certificate No. A472823_02 prepared by Integrated Design Group Pty Ltd dated 16 June 2023; and

3. Amended Statement of Environmental Effects prepared by Integrated Design Group Pty Ltd dated 16 June 2023;

2. The Applicant has filed the Amended Application with the Court on 19 June 2023.

Orders:

17. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to DA22/0804 for alterations and additions to the lower and upper floor of an existing dwelling house and granny flat at 4 Eclipse Lane, Casuarina NSW 2487, which converts the structure back to a single dwelling house, and the use of certain works to the lower floor of the dwelling which have been constructed without consent, subject to the conditions of consent at Annexure A.

E Espinosa

Commissioner of the Court

23.92375 Annexure A

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Decision last updated: 05 July 2023