Hackman v Northern Beaches Council

[2022] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hackman v Northern Beaches Council [2022] NSWLEC 1640

Hearing dates:

Conciliation conference on 19 and 20 September 2022

Date of orders:

17 November 2022

Decision date:

17 November 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.

(2) Review Application No. REV2021/0026, for alterations and additions to a dwelling at 54 Francis Street, Manly, is determined by the grant of Development Consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Manly Local Environmental Plan 2013, cll 4.3, 4.6, 6.1, 6.2, 6.4, 6.8, 6.12
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.14,4.6
State Environmental Planning Policy (Infrastructure) 2007, cl 45
State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.48

Texts Cited:

Manly Development Control Plan 2013

Category:

Principal judgment

Parties:

Joeline and Gregory Hackman (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
T Sattler (Solicitor)(Applicant)
A Pearman (Respondent)

Solicitors:
Sattler and Associates Pty Limited (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/152032

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) by Joeline and Gregory Hackman (Applicant) against the Respondent’s refusal of Review Application No. REV2021/0026. The application was lodged with Northern Beaches Council on 16 September 2021 and determined on 26 November 2021.

2. The original Development Application sought Development Consent for alterations and additions to the existing dwelling and the construction of a swimming pool at 54 Francis Street, Manly. The development is to be constructed on land legally described as Lot 14 in Deposited Plan 4449

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 19 and 20 September 2022.

4. An outcome of the conciliation process was that the applicant provided the following additional material:

1. Amended architectural plans, Revision D dated 19 September 2022 showing the following amendments:

1. An increased setback of the proposed upper level to achieve a rear set-back of 9.0 to 10.0 metres compared with the Manly Development Control Plan 2013 (MDCP 2013) control of an 8.0 metre setback (minimum);

2. Relocation of the stairs to the upper level, from the north west corner to be centrally located on the northern elevation of the upper level, so as to reduce bulk and overshadowing caused by the prior location. This also allowed the usable floor area to move west;

3. An increased setback on the northern side of the development, to 2.0 metres to Bedroom 1 and to 1.5 metres to the internal stairs and Bedroom 2; and,

4. The provision of hourly elevational shadow diagrams demonstrating reduced shadow impact to the dwelling located at No.52 Francis Street, Manly.

2. An amended clause 4.6 variation request seeking to vary the maximum height of buildings development standard in cl 4.3 of the Manly Local Environmental Plan 2013 (MLEP 2013).

5. The parties reached an agreement at the conciliation conference as to the terms of a decision, in the proceedings, that would be acceptable to the parties. The agreement was to support the grant of Development Consent, subject to agreed conditions.

6. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. In particular, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied.

7. The Development Application includes an exceedance of the Development Standard contained within cl 4.3 of the MLEP 2013 relating to the Height of Buildings (HoB). As a result, the application includes a written request seeking to vary a Development Standard pursuant to cl 4.6 of the MLEP 2013.

8. The written request sets out that the proposed additions to the existing dwelling will result in a portion of the new roofing being up to 9.152m in height. This results in a non-compliance of 0.652m or 7.67% to the control. The written request states that the non-compliance is predominantly the gable roof form located in the centre of the site.

9. The parties agree that a variation of the HoB Development Standard, pursuant to cl 4.3 of the MLEP 2013, can be supported. The written request sets out, amongst other things, the following reasons to support the request to vary the Development Standard:

1. There are sufficient environmental planning grounds to justify the HoB variation, namely, the topography of the land and the nature of the existing excavated lower ground level of the dwelling, both of which limit the ability to add to the dwelling whilst complying with the HoB Development Standard.

2. The height non-compliance can be attributed to the prior excavation of the site within the footprint of the existing building, which has distorted the Height of Buildings Development Standard plane, overlaid above the site, when compared to the topography of the existing land. This is considered to be an environmental planning grounds which supports the variation to the control.

3. The proposed new works which exceed the maximum building height control are considered to promote good design and enhance the residential amenity of the buildings’ occupants and the immediate area, by massing the new work towards the centre of the existing building footprint, minimising the visual impact of the bulk and scale when viewed from the rear yards of the northern and southern neighbours.

4. The amended proposal appropriately distributes floor space, building mass and building height across the site. The proposal seeks to minimise the visual impact through distributing the new first floor area. This is achieved with a significant setback from the rear, which retains the current single storey height. The amended proposal provides an increased setback from the western elevation, compared with the lower levels, which present as a modest two storeys.

5. The proposal presents a compatible height and scale to the surrounding development and the articulation to the building facades, combined with low pitch roof form, will suitably distribute the bulk of the new floor area.

6. The modulation of the front façade and building elevations, where visible from the public domain, minimises the visual impact of the development.

7. The alterations demonstrate good design and improve the amenity of the built environment by creating improved and functional living area whilst retaining suitable amenity for the adjoining properties.

8. The proposed addition minimizes additional overshadowing in compliance with the MDCP 2013; cl 3.4.1.1.

9. The development meets the following objectives of the R1 zone:

1. The Amended Development Application provides for the housing needs of the community, by maintaining the detached single dwelling residential form of development.

2. The Amended Development Application supports provision of a range of housing types and densities by maintaining the detached single dwelling residential form of development.

10. The parties support upholding the written request both in terms of the merit and jurisdictional considerations. As noted, I must dispose of the proceedings in accordance with the parties’ agreement, if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

11. I have reviewed the amended cl 4.6 written request for jurisdictional content. It is for the reasons outlined above that I am satisfied that the cl 4.6 written request, for the variation to the HoB Development Standard, addresses the matters raised by cl 4.6 of the MLEP. The decision to uphold the written request, to vary the HoB Development Standard, is a decision that the Court could have made in accordance with s 34(3) of the LEC Act.

12. In respect to other matters, I am satisfied that the decision is one that the Court could make in the proper exercise of its functions. In reaching that state of satisfaction, I note the following:

1. Pursuant to the MLEP 2013, the subject site is zoned R1 General Residential. In determining the Development Application, I have had regard to the objectives of the zone.

2. The application was placed on public notification from 22 July to 5 August 2021. The Council received several submissions raising a number of merit and jurisdictional issues. The applicant made various changes to the application as a result of submissions made. The notification requirements under the EPA Act have been satisfied.

3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards), consideration has been given to whether the Site is contaminated. The parties agree that the land has been used as a dwelling for a significant period of time. The site and the surrounding land are not currently zoned to allow for any uses in Table 1 of the Contaminated Land Planning Guidelines under s 4.14 of the SEPP Hazards.

5. Consideration has been given to the requirements of State Environmental Planning Policy (Infrastructure) 2007 - Cl 45 – the provisions of which are now transferred into s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021. The development application was referred to Ausgrid who provided a response stating that the proposal is acceptable subject to compliance with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice. These recommendations are included as conditions of Development Consent.

6. Clause 6.1 of the MLEP 2013 applies to the subject site and the site is mapped as "Class 5" on the Acid Sulphate Soils Map of MLEP 2013. The proposed development is not below RL 5.0 AHD (refer detail survey) and as a result there is no need for an acid sulphate assessment or management plan.

7. Clause 6.2 – Earthworks, Clause 6.4 – Stormwater Management and Clause 6.8 – Landslip of the MLEP 2013, require a consent authority to have regard to various matters prior to the granting of development consent. The application incorporates a Geotechnical Assessment report by Hodgson Consulting Engineers that evidences a detailed geotechnical investigation of the site. The report sets out recommendations relating to excavation (swimming pool), fill material, foundation materials and footings, stormwater drainage, subsurface drainage, risk management, and the construction of retaining walls. Conditions 11 and 28 of the agreed conditions mandate that the recommendations of the technical reports are incorporated into the construction certificate plans and that ongoing recommendations are adhered to for the life of the development. The material with the application, and the proposed conditions of Development Consent, demonstrate that the matters listed in clause 6.2 have been adequately considered.

8. Clause 6.12 – Essential Services, of the MLEP 2013, states that Development Consent must not be granted unless the consent authority is satisfied that any of the following services, that are essential for the development, are available or that adequate arrangements have been made to make them available when required. The parties agree that the supply of water and electricity is available and that there is an ability to dispose of sewerage and stormwater.

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’ agreement. 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 the EPA Act.

Orders

14. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Review Application No. REV2021/0026, for alterations and additions to a dwelling at 54 Francis Street, Manly, is determined by the grant of Development Consent, subject to the conditions set out in Annexure “A”.

…………………..

S Harding

Acting Commissioner of the Court

Annexure A (328308, pdf)

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Decision last updated: 17 November 2022