Di Zhou v Georges River Council

[2022] NSWLEC 1167

Land and Environment Court

New South Wales

Medium Neutral Citation:

Di Zhou v Georges River Council [2022] NSWLEC 1167

Hearing dates:

Conciliation Conference on 19 January 2022 and 7 February 2022

Date of orders:

5 April 22

Decision date:

05 April 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

See orders at [16]-[19]

Catchwords:

DEVELOPMENT APPLICATION – Building Information Certificate – conciliation conference - Cl 4.6 submission – agreement between parties

Legislation Cited:

Environmental Planning and Assessment Act 1979,
s 4.15
Hurstville Local Environmental Plan 2012, cl 4.4, 4.6, 6.5

Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Proceedings No. 2021/306327
Xiao Di Zhou (Applicant)
Georges River Council (Respondent)

Proceedings No. 2021/306358
Xiao Di Zhou (Applicant)
Georges River Council (Respondent)

Proceedings No. 2021/306381
Huawen Zhang (First Applicant)
Xiao Di Zhou (Second Applicant)
Georges River Council (Respondent)

Proceedings No. 2021/307268
Xiao Di Zhou (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
V Conomos (Applicants)
A Sinclair (Respondent)

Solicitors:
Conomos Legal (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/306327
2021/306358
2021/306381
2021/307268

Publication restriction:

No

Judgment

1. COMMISSIONER: These are four appeals as follows:

1. Proceedings No. 2021/306327 is an appeal against the refusal of development application DA 2021/0339 by Georges River Council. The application sought development consent to permit the use of previously “non-habitable space” as “habitable space” at 25 William Road, Riverwood.

2. Proceedings No. 2021/306358 is an appeal against the refusal of Georges River Council to issue a Building Information Certificate (BIC) in respect to unauthorised works at 25 William Road, Riverwood. The BIC Application sought approval for the following:

1. the retention of a constructed wet bar, internal walls and toilet at the basement level accommodating a wine cellar;

2. the retention of a constructed doorway adjacent to the ground floor stair landing with lock to be removed; the retention of constructed doorway adjacent to the first floor stair landing with lock to be removed; and

3. the retention of the constructed wet bar at the first floor level including the fridge nook at first floor wet bar to be fitout with racking for wine storage.

3. Proceedings No. 2021/306381 is an appeal against the refusal of development application DA 2021/0340 by Georges River Council. The application sought development consent to permit the use of previously “non-habitable space” as “habitable space”, at 25A William Road, Riverwood.

4. Proceedings No. 2021/307268 is an appeal against the refusal of Georges Council to issue a Building Information Certificate (BIC) in respect to unauthorised works at 25A William Road, Riverwood. The BIC Application seeks approval for the following:

1. the retention of a constructed wet bar, internal walls and toilet at the basement level accommodating a wine cellar;

2. the retention of a constructed doorway adjacent to the ground floor stair landing with lock to be removed; the retention of constructed doorway adjacent to the first-floor stair landing with lock to be removed; and

3. the retention of the constructed wet bar at the first floor level. The fridge nook at first floor wet bar to be fit out with racking for wine storage.

2. The development at 25 William Road and 25A William Road, Riverwood was constructed under a previous development consent. Subsequently, separate title was created for each of the properties. The development, as constructed, provides for a shared common driveway leading to a basement car park on each of the respective properties.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 19 January 2022.

4. The parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. On that basis, the matter was further listed for a s 34(1) conciliation conference on 7 February 2022. I presided over both conciliation conferences. The decision agreed upon by the parties is that the four appeals be upheld. The parties agree that Development Consent be granted to the two development applications and that the two BIC’s be issued, subject to the various conditions of consent annexed to this judgment.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these collective proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As part of the appeal process, the applicants furbished the respondent with updated drawings reflecting the future use of the buildings, updated Building Code of Australia Reports (BCA 2019 (A1) Report: 25 William Road Riverwood and (BCA 2019 (A1) Report: 25A William Street, Riverwood) and a Fire Engineering Report (Report No. 16175-R01 Issue 4 dated 18 February 2022 by Gabriel Giordano, Fire Safety Engineer of Innova).

7. The two development application appeals involve objections pursuant to cl 4.6 of the Hurstville Local Environmental Plan 2012 as both development applications result in an exceedance of the development standard contained within cl 4.4 of the HLEP 2012 relating to floor space ratio’s (FSR).

8. Clause 4.4 of the HLEP 2012 prescribes a development standard for the maximum FSR for each development. The maximum permitted FSR for the Sites is 0.6:1. Clause 6.5 of the HLEP 2012 also prescribes a development standard for maximum gross floor area (GFA) for a dwelling house on land within the R2 Low Density Residential Zone, with a site area of less than, or equal to, 630m² but with a maximum of 0.55:1. The proposed FSR, in respect to 25 William Road, is 0.669:1. The proposed FSR in respect to 25A William Road is also 0.669:1.

9. The parties agree that the two written requests (dated 28 February 2022) seeking a variation to the FSR development standard, pursuant to cl 4.6 of the HLEP 2012, are acceptable and should be upheld. For the reasons contained in the cl 4.6 variation request, I am satisfied that the applicants’ written requests have demonstrated that compliance with the development standard is unnecessary or unreasonable because the excess floor space relates to a basement area that does not add to the bulk and scale of the development nor increase the intensity of the development. The conversion of the basement space to floor area does not require an increase in the bulk and scale of the building. I am satisfied that the written requests have established sufficient environmental planning grounds to justify contravening the development standard including, but not limited to, improved amenity for the occupants.

10. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R2 Low Density Residential Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the HLEP 2012 are therefore satisfied.

11. As the presiding Commissioner, I am satisfied that the decisions are ones 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). In reaching that state of satisfaction, and in addition to the cl 4.6 objections, I note the following:

1. The development, being the use of previously non-habitable space as habitable space as part of the single dwelling, is permissible in the R2 Low Density Residential Zone, pursuant to the HLEP 2012. In determining the development applications, I have had regard to the objectives of the zone.

2. Consideration has been given as to whether the site is contaminated as required by cl 7 of State Environmental Planning Policy No 55—Remediation of Land. As the subject site has been recently constructed and used for residential purposes, I am satisfied the provisions of the State Environmental Planning Policy No. 55 (Remediation of Land) are met.

3. The parties agree that the minor nature of the works do not require the provision of an updated certificate to meet the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. I am satisfied that an updated BASIX Certificate is not required.

4. The parties have considered the matters set out in Pt 2 of the Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment as required by s 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (EPA Act). Council is satisfied, by reference to the application, including the Statement of Environmental Effects, that the proposal does not affect stormwater systems. Council is satisfied, that by reference to the application, including the Statement of Environmental Effects, that the proposal does not affect stormwater systems. I am satisfied that the terms of the development consent are consistent with the relevant planning principles pursuant to cl 7(b).

12. 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.

13. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware, of any jurisdictional impediment to the making of these orders.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

15. The final orders to give effect to the parties’ various agreements under s 34(3) of the LEC Act are:

In respect to Proceedings No. 2021/306327

16. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA 2021/0339 seeking development consent to permit the use of previously non-habitable space as habitable space as part of the single dwelling, namely to permit the use of areas in the basement level of the dwelling, from storage to a wine storage, a tasting room/dining room, wet bar and toilet within the single dwelling, and to permit the use of part of the first floor of the single dwelling to a wet bar, on Lot 1 DP 1247911, known as 25 William Road, Riverwood subject to the conditions in Annexure A.

In respect to Proceedings No. 2021/306358:

17. The Court orders that:

1. The appeal is upheld.

2. The Respondent is directed to issue a Building Information Certificate with respect to the alterations and additions to a dwelling house at lot 1 DP 1247911, known as 25 William Road, Riverwood, subject to, and conditional upon, compliance with the conditions set out in Annexure B to this agreement.

In respect to Proceedings No. 2021/306381:

18. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA2021/0340 seeking development consent to permit the use of previously non-habitable space as habitable space as part of the single dwelling, namely to permit the use of areas in the basement level of the dwelling, from storage to a wine storage, a tasting room/dining room, wet bar and toilet within the single dwelling, and to permit the use of part of the first floor of the single dwelling to a wet bar, on Lot 2 DP 1247911, known as 25A William Road, Riverwood, subject to the conditions in Annexure C.

In respect to Proceedings 2021/307268:

19. The Court orders that:

1. The appeal is upheld.

2. The Respondent is directed to issue a Building Information Certificate with respect to the alterations and additions to a dwelling house at Lot 2 DP 1247911, known as 25A William Road, Riverwood, subject to and conditional upon compliance with the conditions set out in Annexure D to this agreement.

………………..

S Harding AC

Acting Commissioner of the Court

Annexure A (183733, pdf)

Annexure B (116076, pdf)

Annexure C (139778, pdf)

Annexure D (116067, pdf)

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Decision last updated: 05 April 2022