Gamallo v Bayside Council

Case •

[2024] NSWLEC 1518

•

27 August 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Gamallo v Bayside Council [2024] NSWLEC 1518
Hearing dates: Conciliation conference on 7 August 2024
Date of orders: 27 August 2024
Decision date: 27 August 2024
Jurisdiction:Class 1
Before: Coetzee AC
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA/2022/294 for alterations and additions to the existing semi-detached dwelling, including removal of ground floor internal walls for ground floor reconfiguration and construction of a new first floor with three (3) bedrooms and one (1) bathroom on the land at 177 Bay Street Botany NSW 2019, known as Lot A in Deposited Plan 443066, subject to the Conditions of Consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – 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

Bayside Local Environmental Plan 2021 cl 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, Sch 5

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:Principal judgment
Parties: Sandra Gamallo (Applicant)
Bayside Council (Respondent)
Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2023/00465846
Publication restriction: Nil

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) of the deemed refusal of Development Application No. DA/2022/294 by Bayside Council. The development application sought consent for alterations and additions to the existing semi-detached dwelling, including removal of ground floor internal walls for ground floor reconfiguration and construction of a new first floor with three (3) bedrooms and one (1) bathroom at 177 Bay Street Botany. The legal description of the site is Lot A, DP 443066.

  2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 7 August 2024. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

  3. The Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. As the parties’ decision is a decision that the Court could have made, in the proper exercise of its functions, under s 34(3) of the LEC Act I am required to dispose of the proceedings in accordance with the parties’ decision.

Jurisdictional Prerequisites

  1. There are jurisdictional prerequisites that need to be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act. The parties have identified and explained how those jurisdiction matters have been satisfied in these proceedings. I am satisfied that there are no jurisdictional prerequisites in these proceedings that have not been satisfied by the Applicant which would prevent the Court from exercising its functions under s 34(3) of the LEC Act as outlined below.

  2. I am satisfied that the owner’s consent has accompanied the development application.

  3. The Applicant has obtained owners consent from 179 Bay Street Botany NSW 2019 which shares the party wall. A copy of the signed party wall consent form, dated 7 April 2024, was provided during the conciliation conference to the Court, and to the Respondent on 24 May 2024.

  4. The Development Application was lodged to the Respondent on the 29 September 2022. The Respondent notified the adjoining and surrounding properties of the DA between 10 October 2022 and 24 October 2022. Two submissions were received, and the parties have advised the Court during the conciliation conference that the issues raised within the submissions have been considered. On the 4 July 2024, the Applicant provided amended plans (Amended Application) to the Respondent.

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

  1. The proposed development is BASIX affected. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate A464041_2 dated 18 July 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Consideration has been given as to whether the subject site is contaminated as required by s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021. The parties have outlined that the site has a long history of residential use and is unlikely to be contaminated. Furthermore, the proposed development would generally be executed above ground. The Respondent in its Planning Report (dated 8 November 2023) accompanying the Class 1 Application, also noted that no further investigations of contamination are considered necessary.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. The requirements of Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) which aims to protect trees and other vegetation in non-rural areas are applicable to the site. Parties agree that no significant vegetation exists on the site, and no vegetation is proposed to be removed as part of the amended development application.

  2. The requirements of Chapter 6 of the SEPP Biodiversity and Conservation are not applicable as the site is not located within a Regulated Catchment.

Bayside Local Environmental Plan (BLEP) 2021

  1. The site is located on land specified as being zoned R2 Low Density Residential under the BLEP. The proposed development application for alterations and additions to the existing semi-detached dwelling are permitted with consent and I have considered the objectives of the zone.

  2. The parties agree, and I accept, that the Amended Application have met the following provisions of the BLEP:

  1. Cl 4.3 Height of buildings applies to the site and has a prescribed maximum of height of 8.5m under the BLEP. The amended application architectural plans prepared by Graphio AM dated 4 July 2024 (Sections Plan, drawing no. DA5.00 and Elevations Plan drawing no. DA6.00) show that the building does not exceed 8.5m.

  2. Cl 4.4 Floor space ratio (FSR) the maximum allowable FSR on the site is 0.75:1 under the BLEP. The Amended Application proposes a FSR of 0.649:1, which is compliant with the maximum FSR standard (Calculations Plan DA 2.00).

  3. Cl 5.10 Heritage conservation applies to the sites as it is identified as a local heritage item, belonging to ‘House Group’ item I179 in Schedule 5 of the BLEP. The Court notes that the site is not located within the boundaries of the Heritage Conservation Area listed under the BLEP. The original development application was supported by a Heritage Impact Statement prepared by Heritage 21 (dated 26 August 2022) which addresses the proposed impacts as required by cl 5.10.

  4. The Court notes that the parties specifically agree the following in the Jurisdictional Statement:

“(a) The proposal would ensure the continued historic use of the site as a residential semi-detached dwelling and improve the living standards of the semi-detached dwelling;

(b) The proposed development consists of a well-designed contemporary rear addition which would respect the heritage significance of the site and adjacent heritage item;

(c) The proposal would retain the significant front façade of the semi-detached dwelling. This would ensure that the semi-detached dwelling would continue to be identifiable as a semi-detached Federation period cottage and would preserve the harmonious pattern with the other dwellings in the Bay Street group;

(d) Any loss of fabric would be located to the rear of the original portion of the roof and be obscured from the public domain;

(e) The proposal would not significantly impact the view lines to and from the heritage item in the vicinity of the site;

(f) The proposal would not alter the historic set back from Bay Street;

(g) The loss of fabric would help facilitate the continued [use] of the residential semi-detached dwelling that is inline with contemporary living expectations; and

(h) Agreed conditions have been imposed to ensure the protection of the subject heritage item and adjoining heritage at 179 Bay Street.”

  1. The parties agree that the Amended Application is acceptable in relation to cl 5.10 and have agreed the conditions in Annexure A to be imposed on the Amended Application to ensure the protection of the subject heritage item, and the adjoining heritage property at 179 Bay Street.

  2. Cl 5.21 Flood planning does not apply as the site is not within a flood planning area and therefore the prerequisites are not applicable.

  3. Cl 6.1 Acid sulfate soils applies to the site as the site is classified as Class 4 on the Bayside Acid Sulfate Soils Map. Development Consent is required under cl 6.1(2) for the following works on Class 4 mapped land for works more than 2 m below the natural ground surface or works by which that lower the water table by 2 m. No excavation at this depth is proposed and the parties agree that the prerequisites to be satisfied and matters for consideration under this clause are not triggered.

  4. Cl 6.2 Earthworks is not applicable to the site as no earthworks are proposed.

  5. Cl 6.3 Stormwater applies to the site. The site will connect into the existing stormwater system at the front of the site and has prepared a Site Analysis and Construction Management Plan (Drawing 1.01 dated 4 July 2024) that outlines controls to minimise impacts during construction.

  6. Cl 6.8 Development in an area subject to aircraft noise is applicable to the site. An Aircraft Noise Acoustic Report has been prepared by Acoustic Noise and Vibration Solutions (dated 20 September 2022) and was submitted as part of the development application. The parties agrees that this satisfies the requirement.

Conclusion

  1. I have considered the jurisdictional prerequisites and for these reasons, I am satisfied that the decision is one that the Court could make in the exercise of its functions. In accordance s 34(3)(a) of the LEC Act I am required to dispose of the proceedings in accordance with the parties’ decision.

  2. 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 were originally in dispute between the parties.

Notations:

  1. The Court notes that:

  1. The Respondent, agreed to the Applicant amending the Development Application No. DA/2022/294 pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), to include the following plans and documents prepared by Graphio AM:

Drawing Title

Sheet No.

Revision

Date

Site Plan

DA1.00

6

4 July 2024

Site Analysis and Construction Management Plan

DA1.01

6

4 July 2024

Calculations Plan

DA2.00

6

4 July 2024

Ground Floor plan

DA2.00

6

4 July 2024

Ground Floor Demolition Plan

DA2.01

6

4 July 2024

First Floor Plan

DA3.00

6

4 July 2024

First Floor Demolition Plan

DA3.01

6

4 July 2024

Roof Plan

DA4.00

6

4 July 2024

Section

DA5.00

6

4 July 2024

Elevations

DA6.00

6

4 July 2024

Elevations

DA6.01

6

4 July 2024

Shadow Diagrams (June 21, 9am)

DA7.00

6

4 July 2024

Shadow Diagrams (June 21, 10am)

DA7.01

6

4 July 2024

Shadow Diagrams (June 21, 11am)

DA7.02

6

4 July 2024

Shadow Diagrams (June 21, noon)

DA7.03

6

4 July 2024

Shadow Diagrams (June 21, 1pm)

DA7.04

6

4 July 2024

Shadow Diagrams (June 21, 2pm)

DA7.05

6

4 July 2024

Shadow Diagrams (June 21, 3pm)

DA7.06

6

4 July 2024

Shadow Diagrams (Sep 21, 9am)

DA7.07

6

4 July 2024

Shadow Diagrams (Sep 21, 10am)

DA7.08

6

4 July 2024

Shadow Diagrams (Sep 21, 11am)

DA7.09

6

4 July 2024

Shadow Diagrams (Sep 21, noon)

DA7.10

6

4 July 2024

Shadow Diagrams (Sep 21, 1pm)

DA7.11

6

4 July 2024

Shadow Diagrams (Sep 21, 2pm)

DA7.12

6

4 July 2024

Shadow Diagrams (Sep 21, 3pm)

DA7.13

6

4 July 2024

BASIX Certificate

Certificate number: A464041_02

-

4 July 2024

Orders

  1. The Court orders:

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No. DA/2022/294, as amended, lodged with Bayside Council on 29 September 2022 seeking consent for alterations and additions to the existing semi-detached dwelling, including removal of ground floor internal walls for ground floor reconfiguration and construction of a new first floor with three (3) bedrooms and one (1) bathroom on the land at 177 Bay Street, Botany NSW 2019, known as Lot A in Deposited Plan 443066, subject to the conditions contained in Annexure A. 

………………………….

L Coetzee

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 27 August 2024

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