Hardie v Sutherland Shire Council

[2021] NSWLEC 1345

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hardie v Sutherland Shire Council [2021] NSWLEC 1345

Hearing dates:

Conciliation conference on 27 April, 11 May and 25 May 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Applicant be granted leave to rely on the amended plans set out in Condition 2 of Annexure A.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA19/0739 for the construction of a new secondary dwelling on Lot 22 DP 239395 known as 142 Prince Edward Park Rd Woronora subject to the conditions of consent contained within in Annexure A.

Catchwords:

APPEAL – development application – secondary dwelling – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10
Environmental Planning and Assessment Regulation 2000, cll 49 and 55
Land and Environment Court Act 1979, ss 34 and 34AA
State Environmental Planning Policy No 55— Remediation of Land
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Sutherland Shire Local Environmental Plan 2015

Texts Cited:

Australian Standard AS3500.3:2003 – Plumbing and Drainage
Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Mark Hardie (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/288025

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a new secondary dwelling in Woronora. The site comprises Lot 22 DP 239395 and is known as 142 Prince Edward Park Road, Woronora (the Land); however, the new secondary dwelling is to be constructed at the rear of the Land and will front Severn Road.

2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

4. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 27 April 2021 and concluded on 25 May 2021. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was subsequently filed on 25 May 2021 and is supported by a Statement of Reasons – Jurisdictional Prerequisites provided by the parties on the same date. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000(EPA Regulation) to grant leave to the applicant to amend the DA and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

6. The amendments reduce the height of the rear section of the new secondary dwelling by 600mm, reducing the bulk and scale of the development when viewed from Prince Edward Park Road and nearby properties and reducing the privacy impacts on the adjoining property to the north of the Land. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The applicant is the owner of the Land and is able to make the DA in accordance with cl 49 of the EPA Regulation.

2. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

3. The proposed development is for the purpose of a secondary dwelling. The Land is within zone E4 Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (the LEP). Development for the purpose of a secondary dwelling is permissible with development consent on land within that zone.

4. In determining the DA, I have had regard to the objectives of the E4 Environmental Living zone in the LEP.

5. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3), floor space ratio (cl 4.4) and landscaped area (cl 6.14).

6. Pursuant to cl 5.4 of the LEP, a secondary dwelling must be less than 60m² or 5% of the floor area of the main dwelling, whichever is greater. The existing dwelling on the Land has a floor area of 127m² and 5% of that area is 6.35m². The proposed secondary dwelling must therefore have a floor area of less than 60m². The amended floor plan (Drawing A103 Revision 4) shows the floor area of the proposed secondary dwelling is 59m², which complies with the requirements of cl 5.4.

7. Clause 6.1 of the LEP requires development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. With respect to the proposed development, the Land is mapped as Class 5 land. Clause 6.1 requires development consent for the carrying out of works on Class 5 land only if such works are within 500m of adjacent class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1m AHD on adjacent class 1, 2, 3 or 4 land. The subject land is not adjacent to class 1, 2, 3 or 4 land.

8. I am satisfied that the proposed development satisfies each of the matters set out in cl 6.4 of the LEP concerning stormwater management. The Land slopes quite steeply from Severn Street to Prince Edward Park Road. The Site Plan (Plan A102 Rev 5) indicates that stormwater is to be connected to the existing stormwater drainage system located at the Prince Edward Park Road end of the Land and that the stormwater system will comply with Australian Standard AS3500.3:2003 – Plumbing and Drainage. Condition 5 of the agreed conditions of consent requires the stormwater drainage system to be designed and constructed in accordance with that Australian Standard and the BASIX Certificate issued for the development. As stated in the Statement of Environmental Effects I accept that:

1. The proposed development exceeds the statutory requirement of 40% landscaped area on the Land;

2. A rainwater tank is proposed as a form of on-site stormwater retention; and

3. The impact of stormwater runoff is mitigated through the proposed landscaping and the provision of a rainwater tank.

9. The Sutherland Shire Development Control Plan 2015 applies to the Land and includes sections on secondary dwellings (Ch 3), ancillary development (Ch 34), stormwater and groundwater management (Ch 38) and environmental risk (Ch 40). I have had regard to these provisions in making my decision.

10. State Environmental Planning Policy No 55—Remediation of Land applies to the Land. The Land has been used for residential purpose for many years and there is no indication that any contaminant generating uses have been carried out on it. The continued use of the Land for residential purposes will not change and I am satisfied that the Land is suitable for the proposed ongoing residential use.

11. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate No 1040414S_02 dated 14 April 2020 was submitted with the DA. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met.

12. The original DA was notified in accordance with Council’s Notifications Policy. The Council received no submissions as a result of the notification. On 30 March 2021 the residents of the adjoining property at 144 Prince Edward Park Road wrote to the Council expressing concern that the construction of the secondary dwelling will adversely impact on their visual and acoustic privacy. These issues have been addressed by the amended design and conditions of consent.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court orders that:

1. The Applicant be granted leave to rely on the amended plans set out in Condition 2 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to development application DA19/0739 for the construction of a new secondary dwelling on Lot 22 DP 239395 known as 142 Prince Edward Park Rd Woronora subject to the conditions of consent contained within in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (188177, pdf)

Plans (1742626, pdf)

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Decision last updated: 11 June 2021