Hall v Northern Beaches Council

[2024] NSWLEC 1199

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hall v Northern Beaches Council [2024] NSWLEC 1199

Hearing dates:

Conciliation conferences 27-28 March 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to DA2023/0894 for demolition of existing buildings, construction of a dwelling, driveway, swimming pool and landscaping at 18 Rock Bath Road, Palm Beach, NSW, 2108 and the adjoining road reserve, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling - conciliation conference - agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7,

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

Roads Act 1993

Environmental Planning and Assessment Regulation 2021, s 38

Pittwater Local Environmental Plan 2014, cll 4.3,7.1, 7.5, 7.7, 7.8, 7.10

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

Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Bridget Elizabeth Hall (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Astill (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Storey and Gough Law (Respondent)

File Number(s):

2023/271148

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 2023/0894 (DA). The DA sought consent for the demolition of existing structures, tree removal, construction of a new dwelling with a swimming pool, landscaping works, an elevated driveway within the Council road reserve and ancillary site works at 18 Rock Bath Road, Palm Beach, legally described as Lot 292 DP 16362 (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA2023/0894 in accordance with the documents listed at [22] (amended DA). The key amendments can be summarised as follows:

• Increased setback from the peninsular;

• Revised Vegetation Management Plan;

• Revisions to the driveway and works within the road reserve; and

• Changes to colours and finishes.

3. 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 27 and 28 March 2024. I have presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended application subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application. I note that Council has agreed to works within the road reserve, which is also subject to further Roads Act 1993 applications to Council (condition 21).

10. The DA was lodged to the Respondent on 10 July 2023. The Respondent notified the development application between 11 July to 28 July 2023. 25 submissions were received, with 10 in support and 15 objections. At the beginning of the site viewing on 27 March 2024, the Court heard oral concerns from two objectors.

11. As the parties have entered into an agreement, Council, as the consent authority, has considered the concerns raised.

Pittwater Local Environmental Plan 2014 (PLEP)

12. The site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP). The proposed development for a dwelling is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable PLEP provisions are met:

1. Clause 4.3(2) sets a maximum building height of 8.5m. The amended architectural plans (in particular DA10, DA11, DA12 and DA21) prepared by Richard Cole Architecture (architectural plans) demonstrate the amended application is below 8.5m.

2. Clause 7.1 acid sulfate soils applies to the site, which is located in Class 5 soils. As detailed in the Geotechnical Site Investigation prepared by Crozier Geotechnical Consultants dated June 2023 (Geotechnical Report), a watertable was not identified on site. Accordingly, the amended application does not lower the watertable and the provisions of 7.1(3) do not apply.

3. Clause 7.5 coastal risk management applies to the site, as it is located within a bluff/cliff instability area on the associated map. With consideration of the Geotechnical Report (particularly Appendix 6 which is a letter of Coastal Engineering Advice prepared by Horton Coastal Engineering dated 16 June 2023), the jurisdictional statement and conditions of consent contained within Annexure A, I accept the parties’ submissions that the provisions have been satisfied.

4. Clause 7.7 geotechnical hazards applies to the site, as it is located within the associated geotechnical hazard H1 map. With consideration of the Geotechnical Report, natural environment joint expert report, stormwater plans within Annexure A and conditions of consent within Annexure A, I accept that the provisions have been met.

5. Clause 7.8 limited development on foreshore area applies to the site. The amended DA proposes a swimming pool within the foreshore area. I accept the parties’ agreement that the provisions have been satisfied as shown on the architectural plans, Statement of Environmental Effects prepared by Northern Beaches Planning dated July 2023 (SEE) and Geotechnical Report.

6. Clause 7.10 essential services applies to the amended DA. With consideration of existing services currently provided to the site, the stormwater plans within Annexure A and the traffic and parking joint expert report, I accept the parties’ agreement that the provisions have been satisfied.

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

14. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

15. The parties agree and I am satisfied that the amended application is accompanied by amended BASIX Certificate (1391177S_02) that meet the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Chapter 2 coastal management of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the site. The parties agree, and I accept, that ss 2.10, 2.11 and 2.12 have been satisfied as demonstrated by the SEE and Geotechnical Report.

17. The provisions of s 4.6 of SEPP RH apply to the site. The amended DA does not involve a change of use and the s 10.7 planning certificate accompanying the Class 1 appeal does not show any reported contamination on site. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP RH have been adequately satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Subsection 2.48 development likely to affect an electricity transmission or distribution network applies to the site. The DA was referred to Ausgrid and the responses received have been incorporated into the conditions of consent at Annexure A.

Conclusion

19. 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.

20. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of 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.

22. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA2023/0894 in accordance with the documents listed below:

Document title	Version	Prepared by	Date
Vegetation management plan	1	EcoLogical Australia	19 February 2024
BASIX Certificate	3	Bonnefin Consulting Pty Ltd	3 April 2024

Drawing number	Revision number	Title	Drawn by	Date
Architectural drawings
DA02	O	Site plan	Richard Cole Architecture	26 March 2024
DA03	O	Ground floor plan	Richard Cole Architecture	26 March 2024
DA04	O	First floor plan	Richard Cole Architecture	26 March 2024
DA05	O	Roof plan	Richard Cole Architecture	26 March 2024
DA06	O	Elevation - east	Richard Cole Architecture	26 March 2024
DA07	O	Elevation – west	Richard Cole Architecture	26 March 2024
DA08	O	Elevation - north	Richard Cole Architecture	26 March 2024
DA09	O	Elevation - south	Richard Cole Architecture	26 March 2024
DA10	O	Long section	Richard Cole Architecture	26 March 2024
DA11	O	Cross section A	Richard Cole Architecture	26 March 2024
DA12	O	Cross section B	Richard Cole Architecture	26 March 2024
DA17	M	Driveway plan and sections	Richard Cole Architecture	15 December 2023
DA25	N	Finishes	Richard Cole Architecture	13 March 2024
Landscape drawings
DA 01 DA	D	Landscape plan	Volker Klemm Landscape Design	February 2024
DA 02 DA	D	Landscape plan	Volker Klemm Landscape Design	February 2024
Engineering drawings
22031/01	H	Proposed garage layout	TEF Consulting	5 February 2024
22031/02	H	Proposed garage layout	TEF Consulting	5 February 2024
22031/03	H	Proposed profile	TEF Consulting	5 February 2024
22031/04	H	Proposed profile	TEF Consulting	5 February 2024
22031/05	H	Proposed profile	TEF Consulting	5 February 2024
22031/06	H	Proposed profile	TEF Consulting	5 February 2024
22031/07	H	Proposed garage layout	TEF Consulting	5 February 2024
22031/08	H	Proposed garage layout	TEF Consulting	5 February 2024
H-DA-01	C	Ground floor and first floor stormwater	ITM Design	18 January 2024

Orders:

23. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to DA2023/0894 for demolition of existing buildings, construction of a dwelling, driveway, swimming pool and landscaping at 18 Rock Bath Road, Palm Beach, NSW, 2108 and the adjoining road reserve, subject to the conditions contained in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 19 April 2024