Darwich v Cumberland Council

[2024] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:

Darwich v Cumberland Council [2024] NSWLEC 1183

Hearing dates:

Conciliation Conference on 21 February and 11 and 15 March 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, agreed in the sum of $3,000.00 within 28 days of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA 2022/0393 for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 Maunder Street, Regents Park NSW 2143, legally known as Lots 34 and 35 in DP 10575, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7 and 6.12

Environmental Planning and Assessment Regulation 2021, ss 23 and 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, ss 6.7, 6.65, 10.2, 10.18, 10.19, 10.20, 10.20, 10.21, 10.22, 10.23, 10.24

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Cumberland Development Control Plan 2021

Category:

Principal judgment

Parties:

Sam Darwich (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C McFazdean (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

23/266668

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Cumberland Council of development application DA 2022/0393 (the DA) for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 Maunder Street, Regents Park NSW 2143, being Lots 34 and 35 in DP 10575 (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 was held initially on 21 February 2024. I presided over the conciliation conference, which commenced with a site inspection. There were no submissions to the DA.

3. The s 34 conciliation conference was adjourned to 11 March 2024 to allow time for amended plans to be prepared by the applicant and assessed by the respondent, and subsequently further adjourned to 15 March 2024 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

4. After the conciliation conferences the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The applicant proposed a number of minor changes to the proposed development at the s 34 conciliation conference on 21 February 2024, including:

1. Creating a building separation of the front dwelling units at the upper floor to a depth of 1.8m;

2. Private open space areas to comply with Council’s requirements;

3. Dwelling size to be made compliant with the Cumberland Local Environmental Plan 2021 (the LEP) (no cl 4.6 variation to be required for FSR development standard); and

4. Redesign of pedestrian access to rear Units 13 and 14 and the adjacent area of communal open space.

6. The respondent completed its assessment of the amended plans and documents and advised that it had formed the view that all contentions raised in its Statement of Facts and Contentions (SOFAC) have been satisfactorily addressed.

7. A signed s 34 agreement with Annexures ‘A’ and ‘B’ was filed with the Court on 15 March 2024, with amended plans and additional material (the amended DA) filed on 20 March 2024, as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

8. 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.

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

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Matters

Owner’s consent

11. The parties advise that Owner’s Consent by the registered proprietor of the lot comprising the site accompanied the DA in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

Community Participation (Sch 1, Div 2, s 7(1))

12. The respondent advised that the DA was notified between 11 and 25 August 2022. No submissions were received in response to that notification.

Referral to Ausgrid

13. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires that written notice of the proposed development is required to the electricity supply authority as the site is within 5 metres of overhead electricity power lines. The respondent advised that the DA was referred to Ausgrid who alluded to separation requirements from wires, and safe construction techniques.

Conditions

14. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Cumberland Local Environmental Plan 2021 (The LEP)

15. The LEP applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned Medium Density Residential zone pursuant to cl 2.2 of the LEP; and:

1. Development for the purpose of attached and semi-attached dwellings is permissible with consent pursuant to cl 2.3 of the LEP; and

2. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of the LEP; and

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 9m; and

1. The parties advise that the amended DA provides a maximum height of 8.5m in compliance with this development standard.

3. Pursuant to cl 4.4 of the LEP a maximum floor space ratio (FSR) of 0.75:1 applies to the site; and

1. The parties advise that the proposed development has a FSR of 0.749:1, in compliance with this development standard.

4. Pursuant to cl 5.10 of the LEP, the parties advise that the site does not contain a heritage item, is not located within a heritage conservation area and is not located within close proximity of a heritage item. The provisions of clause 5.10 are therefore not applicable to the development.

5. Pursuant to cl 5.21 of the LEP, the parties advise that the site is not within the flood planning area and therefore no consideration of clause 5.21(2) is required.

6. Clause 6.1 of the LEP relates to acid sulfate soils. The parties advise that the site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map; and

1. Development consent is not required under cl 6.1(2) as there is no class 1, 2, 3 or 4 land within 500m of the site, including land located within the nearby Canterbury Bankstown local government area and mapped under its local environmental plan.

7. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granted development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the site and adjoining properties. The parties advise that:

1. The development will not disrupt or detrimentally effect drainage patterns and soil stability in the locality;

2. The earthworks are related to and necessary for the future use and redevelopment of the land;

3. The quality of soil to be excavated is unknown but conditions of consent can be imposed to ensure it is disposed of to an appropriate location;

4. Setbacks to the basement and appropriate construction techniques can ensure the excavation has insignificant and acceptable amenity effects for adjoining properties;

5. Fill is not required to accommodate the development. Proposed condition of consent No. 54 requires the disposal of excavated material at an appropriate location;

6. The likelihood of disturbing relics is remote and not of determinative weight;

7. The site is not proximate to and will have negligible to no impact upon a waterway, drinking water catchment or environmentally sensitive area; and

8. In the event of consent being granted, proposed condition of consent No. 70 requires sediment and erosion control during site works.

8. Clause 6.4 of the LEP requires the consent authority to be satisfied that various essential services are available or that adequate arrangements have been made to make them available. The parties advise that they are satisfied that water supply, electricity supply, sewage disposal, stormwater drainage and suitable road access are available or can be made available.

9. Clause 6.7 of the LEP provides stormwater management controls. In relation to considerations at cl 6.7(2), the parties advise that:

1. The proportion of water permeable surfaces is within reasonable expectation for this form of development;

2. An onsite stormwater retention system has not been provided and having regard to the nature of the development is not overly practicable and not assessed as being essential; and

3. Adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, to the extent they arise, can be minimised and mitigated by conditions including by the provision of sediment and erosion controls (proposed condition of consent refers).

10. Clause 6.12(2) of the LEP includes mandatory considerations regarding urban heat. The parties advise that:

1. The development can accommodate sufficient tree canopy, open space and deep soil zones to achieve urban cooling benefits, and the building is designed to achieve high passive thermal performance. These outcomes considered in conjunction with roofing, paved surfaces, awnings, eaves, heating, ventilation, air conditioning and green infrastructure result in a satisfactory urban heat outcome.

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

16. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant’s amended DA is accompanied by BASIX Certificate 1299523M_02 prepared by Thermal Performance and dated 6 April 2023.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. The savings provisions at s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) provide that former Chapters 7-12 as were in force immediately before their repeal by State Environmental Planning Policy Amendments (Water Catchments) 2022 continue to apply to an application for consent lodged but not finally determined by 21 November 2022; and

1. The parties advise that pursuant to s.10.2(2) of Biodiversity and Conservation SEPP as at the date of lodgement of the DA, the site was not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, a wetland protection area, or containing a heritage item. Section 10.18(a) of the SEPP required matters referred to in Chapter 10 Part 10.3 Division 2 of the SEPP be taken into consideration by the consent authority before granting development consent; and

2. The parties’ position is that the proposed development will have a negligible impact, or no impact or no implications, on the Division 2 matters contained at ss 10.19, 10.20, 10.21, 10.22, 10.23 and 10.24.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties advise that a Preliminary Site Investigation Report by Coleman & Adams accompanied the DA. This investigation found no contamination and the parties submit that the land is suitable for the proposed development; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the site as the proposed development is within 5m of overhead electricity power lines; and

1. The parties advise that written notice was provided to Ausgrid who raised no objection to the proposed development.

Cumberland Development Control Plan 2021

20. The Cumberland Development Control Plan 2021 (the DCP) applies to the site; and

1. The respondent advises that the amended DA satisfactorily addresses the provisions of the DCP that were raised in the SOFAC.

Conclusion

21. Having considered the advice of the parties provided above at [15-20], I am satisfied that:

1. The applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

22. 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.

23. 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.

24. The Court notes:

1. That Cumberland Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA 2022/0393 made on 15 March 2024 to rely on the documents specified below:

Ref/Dwg No	Title/Description	Prepared By	Rev	Date/s
Architectural Plans (project no. J0250)
01	Front perspective - Schedule of Finishes	Campbell Hill Group Pty Ltd	M	28/02/2024
02	Site Plan
03	Consolidated Plan
04	Subdivision Plan
05	Sediment Control Plan
06	Streetscape
13	Demolition Plan
14	Cut/Fill Plan
15	Basement Plan
16	Ground Floor Plan
17	First Floor Plan
18	Roof Plan
19	Units 1-4 Elevations/Section
20	Units 5-8 Elevations/Section
21	Units 9-12 Elevations/Section
22	Units 13-16 Elevations/Section
23	Overall Elevations
24	Driveway Cross Section
25	Waste Collection Plan
Stormwater Drainage Concept Design
2253-S1/4	Basement Drainage Plan & Sediment Control Detail	John Romanous & Associates Pty Ltd	C	10/01/2024
2253-S2/4	Ground Floor Drainage Plan, OSD Detail & Screen Detail
2253-S3/4	First Floor Drainage Plan & Rainwater Tank Detail
2253-S4/4	Roof Drainage Plan & Gutter Detail
Landscape Plan (Project No. 48863c)
L-01/2	Landscape Plan (Front)	Ray Fuggle Associates	C	01/03/2024
L-02/2	Landscape Plan (Rear)

2. The amended DA was accompanied by BASIX Certificate 1299523M_02 prepared by Thermal Performance and dated 6 April 2023.

3. The amended DA was filed with the Court on 20 March 2024.

25. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, agreed in the sum of $3,000.00 within 28 days of this order.

2. The appeal is upheld.

3. Development consent is granted to development application DA 2022/0393 for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 Maunder Street, Regents Park NSW 2143, legally known as Lots 34 and 35 in DP 10575 subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 16 April 2024