Greer v MidCoast Council

[2024] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation:

Greer v MidCoast Council [2024] NSWLEC 1429

Hearing dates:

Conciliation conference 4 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA2022/1228 for construction of a proposed dwelling creating a detached dual occupancy (including basement garage), extension of gravel driveway and assorted earthworks at 206 Church Street, Carrington NSW 2234 (Lot 206 DP 1055554) is determined by the grant of consent, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling, creating a dual occupancy – conciliation conference – amended plans – agreement reached – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 10.3

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

Environmental Planning and Assessment Regulations 2021, ss 23, 27, 37, 38, 55

Great Lakes Local Environmental Plan 2014, Sch 5, cll 4.2A, 4.2B, 4.3, 4.4, 4.6, 5.10, 5.16, 5.21, 7.1, 7.2, 7.4, 7.6, 7.7, 7.8, 7.9, 7.10, 7.13, 7.21

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

Standard Instrument (Local Environmental Plans) Order 2006), cl 8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4, Sch 2, ss 4.4, 3.3, 3.6

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 2, ss 2.8, 2.10, 2.11, 2.12, 4.6

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

Great Lakes Development Control Plan 2014

Managing Land Contamination Planning Guidelines

Category:

Principal judgment

Parties:

Justin Greer (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
A Gadiel, solicitor (Applicant)
M Caban, solicitor (Respondent)

Solicitors:
Mills Oakley (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/422910

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicant, Justin Greer, against the actual refusal of development application DA/2022/1228. The development application seeks consent for construction of a proposed dwelling creating a detached dual occupancy (including basement garage), extension of gravel driveway and assorted earthworks. The development is proposed at 206 Church Street, Carrington (Lot 206 DP 1055554).

2. A conciliation conference was held between the parties on 4 July 2024 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one 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). I form this state of satisfaction on the following basis:

1. The development application was made by the owner of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The amended development application was notified between 13 February to 19 March 2024. 21 submissions were received. The further amended development application was notified between 10 and 30 May 2024. 11 submissions were received in response to the further notification. A copy of these submissions has been provided to the Court. Further, at the commencement of the conciliation conference oral submissions in objection were received from a member of the public. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Section 4.14 of the EPA Act applies as the site of the proposed development is identified as bushfire prone land (‘vegetation category 1’, and ‘vegetation category 3’) on the ‘bushfire prone land’ map. The site is identified as being within a designated bush fire prone area on the map certified under s 10.3(2) of the EP&A Act. A ‘bushfire assessment report’ has been prepared by Perception Planning. That report confirms that the proposed development conforms to the specifications and requirements of the Planning for Bush Fire Protection, prepared by the NSW Rural Fire Service and dated November 2019, as amended by the addendum published in November 2022, that are relevant to the development. The development application was referred to the NSW Rural Fire Service who provided a list of recommended conditions which have been incorporated into the consent conditions at Annexure A to this judgment.

4. The development application includes a BASIX certificate no. 1329341S which was issued on 23 September 2022. This certificate confirms that the project passes the BASIX requirements. The BASIX Certificate satisfies the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the Development Application was made.

5. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. A part of the site is mapped as ‘Proximity area for coastal wetlands’ on the Coastal Wetlands and Littoral Rainforests Area Map’ under SEPP RH. However, the part of the site where the development is proposed is outside that mapped area. As such the land to which to development relates is not identified as Proximity area for coastal wetlands and s 2.8 does not apply.

6. Pursuant to s 2.10 ‘Development on land within the coastal environment area’, the site is mapped as being within the ‘Coastal Environment area’. Pursuant to s 2.10(1) consent must not be granted to development on land that is within the coastal environment area unless the following matters are considered:

(a)  the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b)  coastal environmental values and natural coastal processes,

(c)  the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d)  marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e)  existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f)  Aboriginal cultural heritage, practices and places,

(g)  the use of the surf zone.

7. The first two matters are of the most relevance to the development application. With the assistance of the information provided in support of the development application, including the Statement of Environmental Effects (SEE), the On-Site Wastewater Report and the Aboriginal Heritage Due Diligence Assessment, I am satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact on the matters listed at s 2.10(1) of SEPP RH. The precondition at s 2.10(2) of SEPP RH is satisfied.

8. Pursuant to s 2.11 ‘Development on land within the coastal use area’, the site is mapped as being within the ‘Coastal Use area’. Pursuant to s 2.11(1)(a) consent must not be granted to development on land that is within the coastal environment area unless the following matters are considered:

(a)  has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage,

9. The final three matters are of the most relevance to the development application. With the assistance of the information provided in support of the development application, including the architectural plans, SEE, the HIA and the Aboriginal Heritage Due Diligence Assessment, I am satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact on the matters listed at s 2.11(1)(a) of SEPP RH. The proposed development is acceptable in relation to the surrounding coastal and built environment, and the bulk, scale and size of the of the dwelling. The precondition at s 2.11(1)(b) of SEPP RH is satisfied.

10. The subject site fronts Church Street which fronts the Port Stephens Marin Park. However, the site is distant from any coastal hazards. The parties agree and I accept that the proposed development is unlikely to cause risk of coastal hazards on the land or other land. Section 2.12 of SEPP RH is satisfied.

11. Section 4.6 of the SEPP RH requires a consent authority to consider the contamination of land when determining a development application. There is no evidence within Council’s records that the land has been used for any purposes listed in Table 1 of the Managing Land Contamination Planning guidelines, State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). The historical use of the site is detailed in the Heritage Impact Assessment which accompanies the development application. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

12. The provisions of Chapter 4 “Koala Habitat Protection 2021” in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) does not apply for two reasons. Firstly, the provisions do not apply to land zoned 'Zone RU2 Rural Landscape' unless the zone is marked with an asterisk in Schedule 2 to SEPP BC (as per s 4.4(3)(d)(ii)). Secondly, the 'Mid Coast' local government area is not marked with an asterisk in the list in Schedule 2 to SEPP BC.

13. However, the provisions of Chapter 3 ‘Koala Habitat Protection 2020’ do apply as the land is zoned RU2 Rural Landscape and Midcoast Council is a council specified in s 3.3(1)(b) and Schedule 2 to SEPP BC. Pursuant to s 3.6, a consent authority cannot grant consent to carry out development on the land unless it is satisfied whether or not the land is potential koala habitat. I accept the agreement of the parties that I can be satisfied that the land is not potential koala habitat on the specialist advice of council staff qualified to make that determination. Accordingly, s 3.6(3)(a) applies, and the balance of Chapter 3 does not prevent the grant of development consent.

14. The Great Lakes Local Environmental Plan 2014 (LEP 2014) applies to the land. The site is zoned RU2 Rural Landscape on the Land Zoning Map. Development for the purpose of ‘dual occupancy’ is permitted with consent in the RU2 Rural Landscape zone. In determining the development application, I have had regard to the objectives of the zone which are:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To maintain the rural landscape character of the land.

•  To provide for a range of compatible land uses, including extensive agriculture.

•  To provide for rural tourism in association with the primary industry capability of the land which is based on the rural attributes of the land.

•  To secure a future for agriculture in the area by minimising the fragmentation of rural land and loss of potential agricultural productivity.

15. Clause 4.2B ‘Erection of dual occupancies and secondary dwellings in Zone RU2 applies to the development application. The site has the benefit of an existing consent for a single storey dwelling (DA2020/411). The parties submit that this consent is current, though not commenced. Pursuant to subcl (2) development consent must not be granted to development for the purpose of a dual occupancy (detached) or secondary dwelling on land in Zone RU2 Rural Landscape unless the consent authority is satisfied that:

(a)  the development will not impair the use of the land for agriculture or rural industries, and

(b)  each dwelling will use the same vehicular access to and from a public road, and

(c)  for dual occupancies (detached)—dwellings will be situated within 100 metres of each other, and

(d)  the land is physically suitable for the development, and

(e)  the land is capable of accommodating the on-site disposal and management of sewage for the development, and

(f)  the development will not have an adverse impact on the scenic amenity or character of the rural environment.

16. The proposed development is for a dual occupancy (detached) dwelling within the RU2 zone so cl 4.2B of LEP 2014 applies. The development application is supported by a an ‘Agricultural advice’ letter has been prepared by Gilbert & Sutherland and dated 18 April 2024. The parties agree and I accept the development application demonstrates that the development will not impair the use of the land for agriculture or rural industries. As amended the proposed dual occupancy will utilise the same vehicular access to and from a public road as the approved dwelling, satisfying cl 4.2B(b) of LEP 2014. As confirmed on the architectural plans the proposed dual occupancy will be located within 100m of the dwelling house. I am satisfied the land is physically suitable for the proposed dual occupancy as:

1. The site’s topography and physical dimensions are capable of accommodating the proposed residential development.

2. The current use of the site does not involve any activity that would preclude it from residential use.

3. There are no significant hazards or constraints impacting the site that would prevent its use for dual occupancy development.

17. Further, after reviewing the development application the parties agree and I accept that I can be satisfied that the proposed dual occupancy is located on land which is physically capable of accommodating the onsite disposal and management of sewerage which is confirmed in the On Site Wastewater Report prepared by GSL Environmental, dated 10 April 2024. Finally, I am satisfied, having reviewed the streetscape plans, significant setback and details provided, that the development will not have an adverse impact on the scenic amenity or character of the rural environment. I find that the requirements of cl 4.2B are satisfied.

18. Further, pursuant to cl 4.2B(3), development consent must not be granted to development for the purposes of a dual occupancy on land in Zone RU2 Rural Landscape unless development consent for the erection of a dwelling house on that land may be granted in accordance with clause 4.2A. Clause 4.2A(3) states:

(3)  Development consent must not be granted for the erection of a dwelling house on land to which this clause applies unless the land—

(a)  is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or

(b)  is a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or

(c)  is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(d)  is an existing holding, or

(e)  would have been a lot or a holding referred to in paragraph (a), (b), (c) or (d) had it not been affected by—

(i)  a minor realignment of its boundaries that did not create an additional lot, or

(ii)  a subdivision creating or widening a public road or public reserve or for another public purpose, or

(iii)  a consolidation with an adjoining public road or public reserve or for another public purpose.

19. By reference to the disjunctive drafting of the clause, only one of the sub clauses is required to be satisfied. The development application seeks to satisfy cl 4.2A(3)(a), however, the site does not comply with the minimum lot size of 40 hectares as the sites area is 27.5 hectares. Therefore, the Applicant relies on a request, prepared by Planning Ingenuity date 10 July 2024, pursuant to cl 4.6, to vary the minimum lot size in cl 4.2A of LEP 2014.

20. I note that cl 4.6 was amended by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023 on 1 November 2023. However, the current development application was lodged before this date, so (in accordance with cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006) the former terms of cl 4.6 still apply.

21. I find that the written request addresses the matters set out at cl 4.6(3) of LEP 2022, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

1. Pursuant to cl 4.6(3) of LEP 2014, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in cl 4.2A of LEP 2014 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2014), and;

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.2A of LEP 2014 (cl 4.6(3)(b) of LEP 2014).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the minimum lot size standard in the circumstances of the case as the objectives of the standards are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of minimum lot size standard and the objectives of the of RU2 Rural Landscape zone for the reasons detailed in the written request.

5. Clause 4.6(4)(b) is satisfied as the concurrence of the Secretary of the Department of Planning and Environment is to be assumed under s 55 of the Environmental Planning and Assessment Regulation 2021.

6. Having regard to all of the above matters I am satisfied I should uphold the cl 4.6 variation request in relation to the minimum lots size standard in LEP 2014.

22. Pursuant to cl 4.3 ‘Height of Buildings’ the site is mapped with a maximum height of 8.5m. The proposed development seeks a maximum building height of up to 9.35m. The Applicant relies on a written request under cl 4.6 of the LEP to vary the development standard for height control (8.5 metres, as would otherwise apply under cl 4.3(2) of the LEP). This request is titled 'Clause 4.6 Variation Statement Height of Buildings', prepared by Planning Ingenuity and is dated 10 July 2024.

23. I find that the written request to vary the height standard addresses the matters set out at cl 4.6(3) of LEP 2022, including having regard to the tests set out in Initial Action.

1. Pursuant to cl 4.6(3) of LEP 2014, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in cl 4.3 of LEP 2014 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2014), and;

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of LEP 2014 (cl 4.6(3)(b) of LEP 2014).

2. As noted at [21(b)] above, satisfaction of these matters is a precondition to the enlivening of the power to grant consent to the development.

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the maximum height standard in the circumstances of the case as the objectives of the standards are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of maximum height standard and the objectives of the of RU2 Rural Landscape zone for the reasons detailed in the written request.

5. Clause 4.6(4)(b) is satisfied as the concurrence of the Secretary of the Department of Planning and Environment is to be assumed under s 55 of the Environmental Planning and Assessment Regulation 2021.

6. Having regard to all of the above matters I am satisfied I should uphold the cl 4.6 variation request in relation to the maximum height standard in LEP 2014.

24. The site is subject to a floor space ratio (FSR) control of 0.4:1 pursuant to cl 4.4 of LEP 2014. The architectural plans which form part of the development application confirm that the proposed development complies with the FSR standard.

25. The site is not listed as a heritage item under Schedule 5 of LEP 2014. However, part of the site is located within the ‘Carrington Heritage Conservation Area’ (HCA) under Schedule 5 of the LEP and the LEP’s ‘Heritage Map’ (sheet HER_006A). Accordingly, cl 5.10(4) applies, it states:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

26. The site is in the vicinity of the following local heritage items as listed in Schedule 5 of the LEP:

1. ‘Carrington Cemetery’ located at Tahlee Road, Carrington (Crown land in Lot 206, DP 1055554) (item number I12);

2. ‘Former St Andrew’s Church’ located at 25 Church Street, Carrington (item number I13); and

3. ‘Former soldiers barracks cottage’ located at 21 Church Street, Carrington (item number I14).

27. The site is also in the vicinity of state heritage item (as listed in Schedule 5 of the LEP) ‘Tahlee House Estate group, including main building, reception and ballroom wing, boat harbour, grounds, gardens and Nissen Huts’ located at Tahlee Road Carrington (Lot 342, DP 740621) (item number I16).

28. The development application is accompanied by a Statement of Heritage Impact (HIA) prepared by EJE Heritage dated April 2024. That report concludes that the proposed development has been carefully sited to be outside the established curtilage and with a significant setback to Church Street. Further, it assesses the visual impact on any proximate items, and the HCA as negligible. The parties agree, and I accept, that having considered the effect of the proposed development on the heritage significance of the item or area concerned, any such impact is acceptable.

29. Pursuant to cl 5.10(8) of LEP 2014 the development application is accompanied by an ‘Aboriginal Heritage Due Diligence Assessment’ prepared by Access Archaeology dated February 2023. That report confirms that there are no recorded Aboriginal objects on the site and that the site is also of low archaeological potential.

30. As the site is zoned RU2 Rural Landscape and seeks consent for the erection of a dwelling, pursuant to cl 5.16(4) of LEP 2014 the consent authority is required to take the following matters into consideration in determining the development application:

(4)  The following matters are to be taken into account—

(a)  the existing uses and approved uses of land in the vicinity of the development,

(b)  whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c)  whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d)  any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c).

31. In determining the development application, I have taken these matters into consideration and accept the agreement of the parties that none warrant the refusal of consent.

32. Clause 5.21 ‘Flood Planning’ does not apply to the development application as it is not considered by the consent authority to be in a flood planning area.

33. Clause 7.1 of LEP 2022 relates to Acid Sulfate Soils. The portion of the site where development is proposed is identified as being affected by Acid Sulfate Soils, Class 5, on the Acid Sulfate Soils Map. Applying cl 7.1(2), the proposed development is within 500m of Class 2 soils, but the land is not below 5 metres Australian Height Datum. Accordingly, cl 7.1 of LEP 2014 does not apply.

34. The proposed development seeks consent for earthworks. Clause 7.2(3) of LEP 2014 requires that the consent authority consider the following matters prior to the granting of development consent:

(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

35. By reference to the SEE, the HIA and the Aboriginal Heritage Assessment, and having considered these matters, I accept the agreement of the parties that none warrant the refusal of the application.

36. Clause 7.4 ‘Coastal Risk Planning’, cl 7.6 ‘Drinking water catchments’, cl 7.7 ‘Riparian Land’, cl 7.8 ‘Wetlands’, cl 7.9 ‘Protection of wildlife corridors’, cl 7.10 ‘Limited development on foreshore area’, and cl 7.13 ‘Active street frontages’ do not apply as the site is not identified on the applicable maps in LEP 2014.

37. Pursuant to cl 7.21 ‘Essential Services’ the following essential services are available to the proposed development: the supply of electricity and suitable vehicular access. I am satisfied on the basis of the stormwater engineering drawings and the On Site Wastewater Report that adequate arrangements have been made for the disposal and management of sewage and stormwater drainage or on-site conservation. The SEE and the architectural plans confirm that potable water will be supplied to the dwelling by provision of a rainwater tank. I find that cl 7.21 is satisfied.

38. Great Lakes Development Control Plan 2014 (DCP 2014) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2014. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

5. 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. Further, 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.

6. The Court notes that:

1. That pursuant to s 37(1) the EPA Regulation the Applicant applied to the respondent consent authority for an amendment to Development Application DA2022/1228 in accordance with the documents below:

1. ‘Clause 4.6 variation statement – minimum lot size’ prepared by Planning Ingenuity dated 10 July 2024; and

2. ‘Clause 4.6 variation statement – height of buildings’ prepared by Planning Ingenuity dated 10 July 2024.

2. That pursuant to s 38(1) of the EPA Regulation, the Respondent consent authority has approved the application to amend the development application.

3. The Applicant has filed the amended documents comprising the amended development application on 10 July 2024.

4. The Applicant’s written request under cl 4.6 of the LEP 2014 prepared by Planning Ingenuity dated 10 July 2024, seeking a variation of the development standard for building height set out in cl 4.3 of LEP 2014 is upheld.

5. The Applicant’s written request under cl 4.6 of LEP 2014 prepared by Planning Ingenuity dated 10 July 2024, seeking a variation of the development standard for minimum lot size set out in cl 4.2A(3)(a) of LEP 2014 is upheld.

7. The Court orders that:

1. The appeal is upheld.

2. Development application DA2022/1228 for construction of a proposed dwelling creating a detached dual occupancy (including basement garage), extension of gravel driveway and assorted earthworks at 206 Church Street, Carrington NSW 2234 (Lot 206 DP 1055554) is determined by the grant of consent, subject to conditions in Annexure A.

D Dickson

Commissioner of the Court 

Annexure A

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Decision last updated: 26 July 2024