H.A Design Group Pty Ltd v Strathfield Municipal Council

[2022] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation:

H.A Design Group Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1521

Hearing dates:

Conciliation on 19-20 September 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. 2021/110 for the demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works, as amended, at 2 Woodward Avenue, Strathfield, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works – impact on the heritage significance of the heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 4.16

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2000 cl 55

Environmental Planning and Assessment Regulation 2021 Sch 6, cl 3

State Environmental Planning Policy No 55 – Remediation of Land cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Strathfield Local Environmental Plan 2012 cll 4.3, 4.4, 5.10, Sch 5

Category:

Principal judgment

Parties:

H.A Design Group Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s):

2022/140918

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2021/110 for the demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works (the proposal) at 2 Woodward Avenue, Strathfield (Lot B in DP 383091) (the site) by Strathfield Municipal Council (the Council).

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 19 and 20 September 2022. I presided over the conciliation conference. 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.

3. 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 to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

The application is amended

4. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application because the application was lodged with the Council on 31 May 2021, the Class 1 application was filed with the Court on 16 May 2022 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

5. The application was amended to rely on amended plans (the amended proposal), which were uploaded with the Council’s consent under cl 55 of the EPA Regulation 2000 to the NSW planning portal and filed with the Court on 19 September 2022. The amended proposal includes the following plans:

6. Architectural Plans

Sheet, Revision and Issue No.	Plan Name	Date Issued	Prepared by
1, Rev I, Issue H	Site Plan	14 September 2022	H.A Design Group Pty Ltd
2, Rev I, Issue H	Site Analysis	14 September 2022	H.A Design Group Pty Ltd
3, Rev I, Issue H	Ground Floor	14 September 2022	H.A Design Group Pty Ltd
4, Rev I, Issue H	First Floor	14 September 2022	H.A Design Group Pty Ltd
5, Rev I, Issue H	Roof Plan	14 September 2022	H.A Design Group Pty Ltd
6, Rev I, Issue H	Elevations	14 September 2022	H.A Design Group Pty Ltd
7, Rev I, Issue H	Elevations	14 September 2022	H.A Design Group Pty Ltd
8, Rev I, Issue H	Sections	14 September 2022	H.A Design Group Pty Ltd
9, Rev I, Issue H	Soil and Water Management	14 September 2022	H.A Design Group Pty Ltd
10, Rev I, Issue H	Shadow Diagram June 9am	14 September 2022	H.A Design Group Pty Ltd
11, Rev I, Issue H	Shadow Diagram June 12pm	14 September 2022	H.A Design Group Pty Ltd
12, Rev I, Issue H	Shadow Diagram June 1pm	14 September 2022	H.A Design Group Pty Ltd
13, Rev I, Issue H	Shadow Diagram June 2pm	14 September 2022	H.A Design Group Pty Ltd
14, Rev I, Issue H	Shadow Diagram June 3pm	14 September 2022	H.A Design Group Pty Ltd
16, Rev I, Issue H	Shadow Diagram Sept 9am	14 September 2022	H.A Design Group Pty Ltd
17, Rev I, Issue H	Shadow Diagram Sept 12pm	14 September 2022	H.A Design Group Pty Ltd
18, Rev I, Issue H	Shadow Diagram Sept 4pm	14 September 2022	H.A Design Group Pty Ltd
19, Rev I, Issue H	Calculation Sheet	14 September 2022	H.A Design Group Pty Ltd
20, Rev I, Issue H	Schedule of Colour/Finishes	14 September 2022	H.A Design Group Pty Ltd
21, Rev J, Issue J	Landscape Layout Plan	19 September 2022	H.A Design Group Pty Ltd
22, Rev I, Issue H	Front Fence Plan	14 September 2022	H.A Design Group Pty Ltd

7. BASIX Certificate No. 1339580S dated 15 September 2022 issued by Select Projects NSW.

Planning framework

8. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) was repealed on 1 March 2022 and its operative provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP). Clause 7 of SEPP 55 has been transferred to cl 4.6 of the Resilience & Hazards SEPP. Clause 4.6 is expressed in identical terms to cl 7 of SEPP 55. Clause 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated. Clause 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in cl 4.6(4). I accept the Council’s submission that, as outlined in the Statement of Environmental Effects, the historic use of the land the subject of the application has been residential, and the Council has reviewed its historical files and confirms that the proposed use is acceptable in the context of the Resilience & Hazards SEPP.

9. The site is zoned R2 Low Density Residential pursuant to the Strathfield Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

10. The proposal complies with the height of buildings and floor space ratio development standards, at cll 4.3 and 4.4 of LEP 2012.

11. The site is within the C17-Woodward Avenue Heritage Conservation Area (HCA) (Sch 5 and Heritage Map Sheet HER_005 of LEP 2012). The consent authority must, before granting consent, consider the effect of the proposal on the heritage significance of the HCA, pursuant to cl 5.10(4) of LEP 2012.

Expert evidence

12. The applicant relied on the expert evidence of Garry Chapman (planning) and Patrick O’Carrigan (heritage). The Council relied on the expert evidence of Gary Choice (planning) and Lisa Truman (heritage).

13. The four experts prepared a joint report, which was filed with the Court on 13 September 2022. The experts agreed that the amended proposal successfully addresses the Council’s contentions. I accept the agreement of the experts and, based on their evidence in the joint report, I am satisfied that the amended proposal will have an acceptable effect on the heritage significance of the HCA.

Conclusion

14. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 19 September 2022 and I am satisfied, based on the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

15. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/110 for the demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works, as amended, at 2 Woodward Avenue, Strathfield, is determined by the grant of consent, subject to the conditions of consent at Annexure A

____________

Susan O’Neill

Commissioner of the Court

140918.22 (Annexure A) (220698, pdf)

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Decision last updated: 27 September 2022