Hallinan v Georges River Council

[2023] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hallinan v Georges River Council [2023] NSWLEC 1146

Hearing dates:

Conciliation conference 17 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the amended plans listed in paragraph [6].

(2) The appeal is upheld.

(3) Development Application No. DA2021/0189 for the construction of a new, two-storey dwelling house on land known as 44 Park Avenue, Oatley NSW (Lot 21 DP 3230) and associated landscaping and site works is determined by the grant of consent subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Dwelling house – conciliation conference – agreement between parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hurstville Local Environmental Plan 2012, cll 4.3,4.4, 6.2,6.5,6.6

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, s 60O

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6,4.6,6.1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021

Texts Cited:

Georges River Community Engagement Strategy 2018

Category:

Principal judgment

Parties:

Bryan Hallinan (First Applicant)
Holly Hallinan (Second Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
P Holland (Solicitor)(First and Second Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
McCullough Robertson Lawyers (First and Second Applicant)
Georges River Council (Respondent)

File Number(s):

2022/305763

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7(2)(b) of the Environmental Planning and Assessment Act 1979 against the decision of Georges River Council as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. The appeal seeks the deletion of the deferred commencement condition that was imposed on the determination of DA/2021/0189. That development application sought consent for the construction of a new two storey residential dwelling at 44 Park Avenue, Oatley (Lot 21 Section 11 in DP 3230) (The Site).

2. On 17 March 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. Prior to the conciliation conference the parties reached agreement on the basis of amended plans. That agreement is that the Court grant leave to the amended plans, uphold the appeal and grant consent to the development application subject to the annexed 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 basis that:

1. The development application was made with the consent in writing of the existing owners of the land in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

2. The development application was advertised and notified in accordance with the requirements of the Georges River Community Engagement Strategy 2018. No submissions were received.

3. The site is zoned R2 Low Density Residential pursuant to Hurstville Local Environmental Plan 2012 (LEP 2012). The proposed development seeks consent for the purpose of a dwelling house, a permissible use in the zone. In determining the development application, I have given consideration to the objectives of the zone, namely:

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 encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

To ensure that a high level of residential amenity is achieved and maintained.

To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

4. Clause 4.3(2) of the LEP 2012 provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. A maximum building height of 9.0 metres applies to the Site. The proposed development complies with clause 4.3(2) of the LEP 2012, having a maximum height of 7.6 metres.

5. Clause 4.4(2) of the LEP 2012 provides that the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. A maximum floor space ratio of 0.6:1 applies to the Site. The proposed development complies with cl 4.4(2) of the LEP 2012, having a maximum floor space ratio of 0.54:1.

6. Clause 6.2 of the LEP 2012 seeks to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The site has not been identified as containing acid sulfate soils in the LEP 2012 maps.

7. Pursuant to the LEP 2012, the site is located within a Foreshore Scenic Protection Area. Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered how the development would:

(a) affect the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, and

(b) affect the visual environment, including the views to and from the Georges River, foreshore reserves, residential areas and public places, and

(c) affect the environmental heritage of Hurstville, and

(d) contribute to the scenic qualities of the residential areas and the Georges River by maintaining the dominance of landscape over built form.

8. In determining the development, I have given consideration to these factors and conclude:

• The proposed dwelling house is a two storey dwelling house which is consistent in scale and form to existing and new developments in the street and immediate locality.

• The Site is removed from the waterfront by properties and parkland and therefore will not affect the visual and scenic qualities of the Foreshore Scenic Protection Area and will not adversely affect views to and from the public domain and/or private residences. The proposed development satisfies the objectives and intentions for development within the foreshore area.

• There will be no change to the environmental heritage of Hurstville.

9. Clause 6.5 of LEP 2012 requires that, on R2 zoned land of less than 630m², that the maximum gross floor area (GFA) of a dwelling house is less than the Site area multiplied by 0.55 (in this scenario - 269.78m² or FSR of 0.55:1). The proposed GFA is 264.87m² or floor space ratio of 0.54:1 and therefore, the proposal complies.

10. Pursuant to cl 6.6 of LEP 2012 I am satisfied that all of the essential utilities are provided, and I accept the agreed submission of the parties that the updated stormwater drainage concept is satisfactory.

11. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) the development application proposes the removal of five non prescribed trees. Section 2.6 of SEPP BC states that a person must not clear non-exempt vegetation in any applicable area without a permit granted by the Council. However, pursuant to s 2.7(1) an authority to clear is not required as it is a type of clearing that is authorised under s 60O of the Local Land Services Act 2013.

12. Section 6.1(1) of SEPP BC states that development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of matters relating to water quality and quantity. The Site is within the Georges River Catchment. I accept the agreement of the parties that I am able to be satisfied that the proposed development application and the stormwater drainage concept satisfies the matters in ss 6.6(1) and (2) in SEPP BC.

13. Consistent with the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the development application is supported by a compliant BASIX certificate.

14. Pursuant to s 4.6 of SEPP BC I have considered whether the land is contaminated, and I accept that the site has been used for residential purposes for extended periods of time, and such uses and/or development are not typically associated with activities that would result in the contamination of the site. The proposed works do not result in any concerns with respect to contamination. Further, the proposed development continues to use the Site for residential accommodation. There is no change of use and thus the requirement for a preliminary site investigation report referred to in s 4.6(2) of the SEPP BC does not arise.

15. In accordance with requirements of s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021, the DA was referred to Ausgrid on 26 May 2021. No objection was received.

Conclusion

4. 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.

5. 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.

6. The Court notes that the Respondent has agreed under, cl 55(1) of the EP&A Regulation , to the Applicant being granted leave to amend the development application in accordance with the below documentation:

Document	Dwg	Revision	Dated
Architectural Plans prepared by Extend-a-home Constructions Pty Ltd
Cover Page	A3-1	C-3	20/02/2023
Site Plan	A3-2	C-3	20/02/2023
Ground Floor Plan	A3-3	C-3	20/02/2023
First Floor Plan	A3-4	C-3	20/02/2023
South & North Elevations	A3-5	C-3	20/02/2023
West& East Elevations	A3-6	C-3	20/02/2023
Sections A-A & B-B	A3-7	C-3	20/02/2023
Electrical Layout	A3-8	C-3	20/02/2023
Window List	A3-9	C-3	20/02/2023
Bath & Ensuite Tile Layout	A3-10	C-3	20/02/2023
Neighbours Notification	A3-11	C-3	20/02/2023
Site Analysis Plan	A3-12	C-3	20/02/2023
Landscape Plan	A3-13	C-3	20/02/2023
Stormwater Plan	A3-14	C-3	20/02/2023
Site Works Management & Soil Erosion Control Plan	A3-15	C-3	20/02/2023
Construction Plan	A3-16	C-3	20/02/2023
Dilapidation Plan	A3-17	C-3	20/02/2023
9am 22nd JUNE SHADOW	A3-18	C-3	20/02/2023
12pm 22nd JUNE SHADOW	A3-19	C-3	20/02/2023
3pm 22nd JUNE DIAGRAM	A3-20	C-3	20/02/2023
Driveway Gradient	A3-21	C-3	20/02/2023
Amended Stormwater plans prepared by Sparks + Partners Consulting Engineers
Document	Dwg	Revision	Dated
Stormwater Management Report (Ref No. 22026)	3	2/02/2023
Cover Page & Drawing Schedule	DA1101	3	02/2023
Notes and Specifications	DA1201	3	02/2023
Concept Sediment & Erosion Control Plan & Details	DA2101	3	02/2023
Concept Stormwater & Grading Plan	DA4101	4	02/2023
Concept Stormwater Catchment Plan	DA4301	3	02/2023
Concept Stormwater Management Sections & Details	DA4701	2	02/2023

Orders

7. The Court orders that:

1. The Applicant is granted leave to rely upon the amended plans listed in paragraph [6].

2. The appeal is upheld.

3. Development Application No. DA2021/0189 for the construction of a new, two-storey dwelling house on land known as 44 Park Avenue, Oatley NSW (Lot 21 DP 3230) and associated landscaping and site works is determined by the grant of consent subject to conditions in Annexure A.

D Dickson

Commissioner of the Court

(Annexure A) (286445, pdf)

**********

Decision last updated: 05 April 2023