Grounds v Northern Beaches Council

[2021] NSWLEC 1803

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grounds v Northern Beaches Council [2021] NSWLEC 1803

Hearing dates:

Conciliation conference on 14 December 2021

Date of orders:

30 December 2021

Decision date:

30 December 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

1. The Appeal is upheld.

2. Development Application 2020/1136 for demolition of existing buildings and construction of a new three(3) storey dwelling, ancillary site works including excavation, landscaping and stormwater disposal at 13 Pacific Road, Palm Beach is approved subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Pittwater Local Environmental Plan 2014 cll 4.3, 5.10, 7.1, 7.2, 7.10.

State Environmental Planning Policy 55- Remediation of Land cl 7.

State Environmental Planning Policy (Coastal Management) 2018 cll 14, 15.

State Environmental Planning Policy (Infrastructure) 2007

Category:

Principal judgment

Parties:

William Grounds (Applicant)
Northern Beaches Council (Respondent)

Representation:

Dr JY Eun (Applicant)
S Patterson (Respondent)

Solicitors:
Morson Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/240236

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) against the actual refusal of development application 2020/1136 for demolition works and construction of a three storey dwelling house at Lot 404 DP 19651, 13 Pacific Road, Palm Beach.

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 14-15 December 2021. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. As a result of the conciliation conference, the Applicant amended the development application to reduce the height of the dwelling to be within the 10m maximum height limit. This amendment occurred with the agreement of the Respondent as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (Regulation). The Court has been notified that the amended modification application has been lodged on the NSW planning portal and filed with the Court, and that subsequently, the requirements of cl 55 of the Regulation are met.

5. 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 the function under s 4.16 of the EPA Act grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised and, in this regard, I note the following:

1. The DA was lodged with the written consent of the landowner, William Grounds.

2. Clause 7(1) of State Environmental Planning Policy 55- Remediation of Land (SEPP 55) requires the Consent Authority to consider whether the land is contaminated. As per Council records, the site is currently in use for residential purposes with no prior land use. The site poses little to no risk of contamination and is considered suitable for continued residential use.

3. A BASIX certificate has been submitted that applies to this development and confirms that it will meet the required sustainability commitments. Additionally, a condition of consent has been applied requiring compliance with the commitments of this certificate.

4. As required by State Environmental Planning Policy (Infrastructure) 2007, the proposal has been referred to Ausgrid who have confirmed it is acceptable subject to conditions of consent.

5. The State Environmental Planning Policy Coastal Management 2018 (SEPP Coastal Management) applies to this site, as it falls within the mapped ‘Coastal Use Area’ of this SEPP. Based on the evidence given by the planning experts and the Development Application Assessment Report within the respondent’s bundle, I am satisfied that the requirements of SEPP Coastal Management cll 14 and 15 are satisfied by this development.

6. Development for the purposes of dwelling houses is permitted with consent in the Zone E4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP), and as per the objectives of this zone, the amended proposal provides low impact residential development, with no adverse effect on the areas special ecological, scientific or aesthetic values.

7. The Height of Buildings map in the PLEP allocates a maximum building height of 8.5m, as per PLEP cl 4.3(2). However, cl 4.3(2D) provides the following:

‘(2D)  Despite subclause (2), development on land that has a maximum building height of 8.5 metres shown for that land on the Height of Buildings Map may exceed a height of 8.5 metres, but not be more than 10.0 metres if—

(a)  the consent authority is satisfied that the portion of the building above the maximum height shown for that land on the Height of Buildings Map is minor, and

(b)  the objectives of this clause are achieved, and

(c)  the building footprint is situated on a slope that is in excess of 16.7 degrees (that is, 30%), and

(d)  the buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs that allow the building to step down the slope.’

The maximum height of the development is 9.95m. This exceedance of the 8.5m maximum height limit occurs to a portion of the roof to the south-east corner of the proposed dwelling. Based on the revised drawings that are the subject of this conciliation and the submissions of the Planning experts, I am satisfied that the portion of the building above the 8.5m height limit is minor, the building footprint is situated on a slope that exceeds 16.7 degrees, and that the building is sited and designed to take into account the slope of the land, and minimise the need for cut and fill. In addition, based on the observations I was directed to make on site, the submissions of the planning experts and the revised drawings, I am satisfied that the objectives of cl 4.3(1) are achieved because the building:

1. by virtue of its height and scale, is consistent with the desired character of the locality,

2. is compatible with the height and scale of surrounding and nearby development,

3. minimises overshadowing of neighbouring properties,

4. allows for reasonable sharing of views

5. is designed to respond to sensitively to the natural topography and,

6. minimises adverse visual impact of the development of the natural environment and has no adverse impact on heritage conservation areas or heritage items.

8. Subsequently, the requirements of cl 4.3 (2D) are satisfied, and cl 4.3(2D) therefore applies. As the building height remains below 10m and the requirements of cl 4.3(2D) are met, the exceedance of the 8.5m height limit for this proposal is acceptable. Furthermore, the proposed development does not breach the height of buildings development standard set out in cl 4.3 of the PLEP and a cl 4.6 written request is therefore not required.

9. Pursuant to cl 5.10 of the PLEP, the site is not identified as a heritage item, nor is it within a heritage conservation area on within the vicinity of any heritage items.

10. The site is identified as Class 5 on the Acid Sulfate Soils Map, however the works are not within 500m of an adjacent Class 1, 2, 4 or 4 land that is below 5m AHD and by which the water table is likely to be lowered below 1m. The requirements of PLEP cl 7.1 are therefore met with this proposal.

11. The DA includes a geotechnical report (J2578 prepared by White Geotechnical dated 10 September 2020) which indicates there will be no likely impacts or disruption of any of the matters for consideration under PLEP cl 7.2, subject to recommendations which have been included in the conditions of consent.

12. As an existing residential property, the site has access to essential services and, subject to conditions of consent, adequate stormwater and vehicular access arrangements. The requirements of PLEP cl 7.10 are therefore met.

13. Based on the submissions of both parties and the evidence of the SEE, I am satisfied that the matters listed in EPA Act s 4.15(1) have been considered.

6. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. 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.

8. The Court notes:

1. that the Applicant has amended Development Application 2020/1136 with the agreement of Northern Beaches Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the amended plans and documents referred to in the list of amended plans and documents in Annexure A (“Amended Development Application”).

2. that the Amended Development Application has been lodged on the NSW planning portal on 15 December 2021

3. that the Applicant has subsequently filed the Amended Development Application with the Court on 17 December 2021

9. The Court orders:

1. The Appeal is upheld.

2. Development Application 2020/1136 for demolition of existing buildings and construction of a new three (3) storey dwelling, ancillary site works including excavation, landscaping and stormwater disposal at 13 Pacific Road, Palm Beach is approved subject to the conditions in Annexure B.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (183823, pdf)

Annexure B (215566, pdf)

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Decision last updated: 30 December 2021