Davies v Northern Beaches Council

[2024] NSWLEC 1086

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davies v Northern Beaches Council [2024] NSWLEC 1086

Hearing dates:

Conciliation Conference 12 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to development application No DA2023/0186, for demolition of the existing dwelling house, subdivision of one lot into two lots and construction of one dwelling house on each allotment on land comprising Lot 2 in DP519674 located at 42 White Street, Balgowlah, NSW, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – subdivision into 2 lots – construct 2 new dwelling houses on each lot – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021 s 38

Manly Local Environmental Plan 2013, cll 2.3, 2.7, 4.1, 4.3, 4.4, 6.2, 6.4

Category:

Principal judgment

Parties:

Sara Jane Davies (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
F Berglund (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/213615

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 DA2023/0186 (the Development Application) for demolition of the existing dwelling house, subdivision of one lot into two lots and construction of one dwelling house on each allotment (the Proposed Development) on land comprising at 42 White Street, Balgowlah, NSW, being Lot 2 in DP 519674 (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 and at Court. 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 the Proposed Development, as amended, of the land with conditions.

4. The Final Plans filed with the Court on 12 February 2024 result in modifications to the proposed dwellings to:

1. Reduce the footprint of the two dwellings;

2. Reduce the height of the two proposed dwellings;

3. Increase landscaping and open space for both proposed lots;

4. Amend the orientation of the proposed driveway; and

5. Provide further detail for the design including amended stormwater infrastructure.

5. 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.

6. 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 (Statement) provided to the Court on 12 February 2024. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

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

Jurisdictional Matters:

8. I have considered the jurisdictional issues raised by the following Environmental Planning Instruments (EPIs) as set out in the parties Statement and are satisfied that no jurisdictional impediments arise under these EPIs preventing the Court from allowing the appeal and granting consent to the Development Application, as amended:

• State Environmental Planning Policy (Resilience and Hazards) 2021

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

• State Environmental Planning Policy (Transport and Infrastructure) 2021

Manly Local Environmental Plan 2013 (MLEP)

Permissibility

9. The Site is zoned R1 – General Residential under the MLEP. Development for the purposes of subdivision and dwelling houses is permissible in the zone.

10. Regard must be had to the objectives for development of Zone R1 when determining the Development Application under cl 2.3(2) of the MLEP. The zone objectives are:

• To provide for the housing needs of the community.

• To provide for the housing needs of the community.

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

11. I am satisfied that the development by its form and nature is consistent with the objectives of the zone.

Demolition

12. Clause 2.7 of MLEP (Demolition) provides that demolition is permissible with consent. To the extent the demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.

Minimum lot size

13. Clause 4.1 provides for a minimum Subdivision Lot Size of 300m². The proposal provides for the following lot sizes which comply:

• Lot A 373.6m²

• Lot B 341.7m²

Height of Buildings

14. Clause 4.3 of the MLEP and the Height of Buildings Map fixes a maximum building height of 8.5 metres for the Site. The Final Plans show that the height of the Proposal is less than 8.5m.

Clause 4.4 Floor Space Ratio

15. The maximum floor space ratio for the Site is 0.5:1.

16. Clause 4.4(2) provides that the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

17. The Final Plans have an FSR nominated of 0.5:1 (as rounded up from a precise figure of 0.49993.1) and therefore the proposed development does not exceed the floor space ratio control.

Earthworks

18. The Development Application proposes excavation. Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters listed at cl 6.2(3) of the MLEP. These matters are considered by the Respondent in its assessment report and have been addressed in conditions of consent.

Stormwater

19. Clause 6.4 applies to Stormwater Management and cl 3 provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

20. The Final Plans are supported by stormwater management plan Rev 2 prepared by Deboke and demonstrate that:

1. A large area of pervious terrain on the post development catchment plan (sheet 2) for the purposes of clause 3(a);

2. Above and below ground OSD tanks for the purposes of clause 3(b);

3. Appropriate infrastructure to filter stormwater runoff (mesh screens, grates and the like) for the purposes of clause 3(c) and connection to the street drainage system in White Street.

21. The Respondent also confirms that the Final Plans resolve contention 8 which address the issue of stormwater drainage.

Remaining matters in section 4.15(1)

22. The parties agree and the Court accepts that the Development Application can be approved taking into consideration the relevant matters in s 4.15(1)(a) – (e) of the EPA Act which are set out in detail in the parties agreed Statement.

Notification – Public Participation:

23. The Development Application was notified from 7 March 2023 to 21 March 2023. Seven submissions from neighbouring land owners were received. The objections were considered by the parties and the Court.

24. The Final Plans do not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the Development Application.

25. The Court heard from adjoining land owners on site and visited their respective properties to examine their concerns with the proposed development. I am satisfied that the perceived potential view loss was minimal, and the Applicants agreed to remove a clump of bamboo in their back yard at that neighbour’s request. I am satisfied the neighbours who made oral and written submissions were accorded procedural fairness.

Conclusion:

26. 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.

27. 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. 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:

1. Northern Beaches Council as the relevant consent authority has agreed under clause 38(1) of the Environmental Planning and Assessment Regulation 2021 to the amendment of Development Application DA2023/0186 to rely upon the plans and documents listed below:

Architectural Plans - Endorsed with Council's stamp
Drawing No.	Dated	Prepared By
A00 Issue S1, Cover Page	18/01/2024	Tom Simmat & Associates
A01 Issue S1, Site Context Plan	18/01/2024	Tom Simmat & Associates
A02 Issue S1, Site Plan	18/01/2024	Tom Simmat & Associates
A03 Issue S1, Subdivision Plan	18/01/2024	Tom Simmat & Associates
A04 Issue S1, Landscape Area Plan	18/01/2024	Tom Simmat & Associates
A04A Issue S1, Open Space Area Plan	18/01/2024	Tom Simmat & Associates
A05 Issue S1, Site Coverage Plan	18/01/2024	Tom Simmat & Associates
A06 Issue S1, Shadow Diagrams	18/01/2024	Tom Simmat & Associates
A07 Issue S1, Ground Floor Plans	18/01/2024	Tom Simmat & Associates
A08 Issue S1, First Floor Plans	18/01/2024	Tom Simmat & Associates
A09 Issue S1, Second Floor Plans	18/01/2024	Tom Simmat & Associates
A09A Issue S1, Roof Plan	18/01/2024	Tom Simmat & Associates
A09B Issue SI, Floor Area Plan	18/01/2024	Tom Simmat & Associates
A10 Issue S1, Elevations 01	18/01/2024	Tom Simmat & Associates
A11 Issue S1, Elevations 02	18/01/2024	Tom Simmat & Associates
A11A Issue S1, Elevations 03	18/01/2024	Tom Simmat & Associates
A12 Issue S1, Sections 01	18/01/2024	Tom Simmat & Associates
A13 Issue S1, Sections 02	18/01/2024	Tom Simmat & Associates
A14 Issue S1, Door Schedule	18/01/2024	Tom Simmat & Associates
A15 Issue S1, Window Schedule	18/01/2024	Tom Simmat & Associates
A16 Issue S1, 3Ds 01	18/01/2024	Tom Simmat & Associates
A17 Issue S1, 3Ds 02	18/01/2024	Tom Simmat & Associates
A18 Issue S1, Stormwater Management Plan	18/01/2024	Tom Simmat & Associates
A19 Issue S1, Sediment Control Plan	18/01/2024	Tom Simmat & Associates
Landscape Plans
LP01 Issue SI	18/01/2024	JCA Urban Designers Landscape Architects
LP02 Issue S1	18/01/2024	JCA Urban Designers Landscape Architects
Subdivision Plans
12650Bsubdivision Issue 3	8/01/2024	CMS Surveyors
Engineering Plans
Drawing No.	Dated	Prepared By
20230315-S34-SW-DWG-02, Sheets S101, S200, S201, S202, S203, S300, S301, S302, S400 Revision 02	17/11/2023	Deboke Civil
DR-01 & DR-01, Revision E	01/11/2023	James Taylor & Associates
Report
Addendum – Arboricultural Impact Assessment	03/11/2023	Rain Tree Consulting

2. The amended plans and documents referred to above at para [1] were filed with the Court on 12 February 2024.

Orders:

29. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No DA2023/0186, for demolition of the existing dwelling house, subdivision of one lot into two lots and construction of one dwelling house on each allotment on land comprising Lot 2 in DP519674 located at 42 White Street, Balgowlah, subject to the conditions of consent at Annexure A.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 29 February 2024