Forsyth v Campbelltown City Council

[2022] NSWLEC 1414

Land and Environment Court

New South Wales

Medium Neutral Citation:

Forsyth v Campbelltown City Council [2022] NSWLEC 1414

Hearing dates:

Conciliation conference on 11 and 28 April 2022

Date of orders:

04 August 2022

Decision date:

04 August 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Application No. DA 225/2020/DA-DW for the construction of a single storey dwelling and associated site works on Lot 8177 DP 881519 known as 1 Denfield Circuit St Helens Park is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

(3) The parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in [2] above.

Catchwords:

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

Legislation Cited:

Campbelltown Local Environmental Plan 2015 cll 4.1C, 4.3, 5.21, 7.1, 7.4

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

Environmental Planning and Assessment Regulation 2000, cl 55

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment cll 8, 9

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 11.6, 11.7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

James Michael Forsyth (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
S Berveling (Barrister) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Duffy Law Group (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/336892

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA No 2225/2020/DA-DW (the DA) by Campbelltown City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 166.6 m² parcel of land which is legally described as Lot 8177 in DP 881519 and known as 1 Denfield Circuit, St Helens Park (the Site). The Site has a frontage of 5.36 m and a depth of 31.2 m. The DA as submitted to Council sought consent for a one bedroom dwelling house with combined living, dining and kitchen area, storeroom, bathroom and laundry with a total gross floor area of 49.5 m². Vehicular access was proposed from Baynton Place.

3. The Development Application was notified by the Respondent for a period of 21 days from 24 August to 15 September 2021. A total of six (6) submissions (including a petition containing 42 signatures) were received and these submissions have been considered by the Respondent and by the Court.

4. 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 on 11 April 2022, and at which I presided. Council provided a copy of all resident objections in advance of the conciliation conference. Two residents made submissions at the conciliation conference.

5. Prior to 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.

6. A signed agreement and agreed conditions prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 28 April 2022.

7. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to the agreed conditions of development consent annexed to the s 34 agreement.

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. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [9] – [12] below.

Satisfaction of jurisdiction

9. The relevant jurisdictional matters in relation to the Campbelltown Local Environmental Plan 2015 (CLEP) are:

1. The proposed development is characterised as a dwelling house which is permitted in the R2 Low Density Residential zone under CLEP with the development consent of Council.

2. The proposed development is consistent with the objectives of the R2 Low Density Residential zone, which relevantly include “to provide for the housing needs of the community within a low density residential environment” and “to minimise overshadowing and ensure a desired level of solar access to all properties” and “to facilitate diverse and sustainable means of access and movement”. I am satisfied that resident amenity is protected, and that the proposal is consistent with the objectives of the R2 zone.

3. Clause 4.1C(2) of CLEP imposes a development standard for the minimum area of land proposed to be used for certain types of residential development set out in a table to cl 4.1C. At the date of lodgement of the DA (15 July 2020) the Table included a minimum site area of 500m² for a dwelling house. However, subsequently CLEP was amended on 30 April 2021 (Amendment 24) and this requirement was omitted from the CLEP and therefore does not apply to the DA as there is no savings provision regarding the Amendment 24 to CLEP.

4. The proposed single storey dwelling house complies with the 8.5 m height control in cl 4.3 of CLEP.

5. Clause 5.21 of CLEP prevents the granting of consent on land considered to be within a flood planning area. I am satisfied that the site is not located within a flood planning area on the LEP Constraints Map and therefore this cl is not relevant to the DA.

6. Clause 7.1 of CLEP requires various matters to be considered in determining whether to grant consent for earthworks. The DA proposed minor earthworks for the driveway with a maximum cut of 1 m. I am satisfied that the conditions of consent in Annexure A will address and satisfy the requirements of cl 7.1.

7. Clause 7.4 of CLEP applies to development affected by groundwater salinity. I am satisfied from the evidence that the Site is not affected by groundwater salinity and therefore cl 7.4 is not engaged.

8. The Applicant is the owner of the land and has provided owners consent to lodgement of the DA.

10. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. The Applicant engaged Solem Liew of GeoEnviro Consultancy Pty Ltd to prepare a preliminary site investigation (PSI). The PSI, dated April 2022, concludes that from a review of the historical information and a site inspection, the risk of contamination was considered to be low and therefore the Site was suitable for the proposed development. I am satisfied from the evidence that the Site has historically been used for residential purposes and is not contaminated and does not adjoin land known to be contaminated.

11. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), an amended BASIX certificate No 1281364S dated 17 February 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the SEPP BASIX.

12. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the Site, which is mapped as being within the Georges River Catchment. From the evidence and the stormwater plans provided I am satisfied that the proposed development has taken into account the general principles in ss 11.6 and 11.7 of the SEPP B&C (formerly cl 8 and 9 of Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment (GMREP)).

13. 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.

14. The Court notes:

1. Campbelltown City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA 2225/2020/da‑dw by reliance on BASIX certificate No. 1281364S dated Thursday 17 February 2022.

2. The Respondent uploaded BASIX certificate No. 1281364S to the NSW planning portal on 28 April 2022.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA 225/2020/DA-DW for the construction of a single storey dwelling and associated site works on Lot 8177 DP 881519 known as 1 Denfield Circuit St Helens Park is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

3. The parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in [2] above.

……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A.pdf

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Decision last updated: 04 August 2022