Hassan v Bayside Council

[2023] NSWLEC 1382

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hassan v Bayside Council [2023] NSWLEC 1382

Hearing dates:

Conciliation conference on 19 June 2023

Date of orders:

20 July 2023

Decision date:

20 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for development application number DA-2022/380, as amended, for substantive demolition of existing buildings (retention of the southern side wall of the dwelling) and construction of a new two-storey dwelling and in-ground swimming pool on land identified as Lot 1 in Deposited Plan 928656 and known as 7 Farr Street, Banksia NSW 2216, subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2022, cll 2.3, 4.3, 4.4, 6.1, 6.2, 6.3, 6.8

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, cl 38(1)

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 2.2, s 2.10

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Adam Hassan (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/16381

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Adam Hassan (the Applicant) has appealed the refusal by Bayside Council (the Respondent) of its Development Application 2022/308 (the DA), made with owner’s consent, seeking consent for substantive demolition of the existing buildings (retention of the northern and southern side walls of the dwelling only) and the construction of a two-storey dwelling and swimming pool (the Proposed Development) on land legally described as Lot 1 in Deposited Plan 928656 and known as 7 Farr Street, Banksia NSW 2216 (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s DA was notified 13 to 27 October 2022 pursuant to the provisions of the Rockdale Development Control Plan 2011 (RDCP), and one submission was received in response to the notification. That submission has been considered during the development assessment process.

4. On 19 June 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A view of the Subject Site and surrounds was undertaken during the conciliation conference.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application;

2. the Parties have considered whether the Site is contaminated and:

1. the Respondent has confirmed that the Subject Site has no known history of potentially contaminating uses and events, and that based on the historical use of the Site for residential purposes and its continuing proposed residential use, no further site investigation is warranted; and

2. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development, as amended, and that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

2. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided an amended BASIX Certificate 1334097_03 dated 20 June 2023 in satisfaction of the requirements of SEPP BASIX;

3. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. the Proposed Development includes the proposed removal of existing vegetation on the Subject Site and so Part 2.2 of SEPP B&C applies;

2. the Parties have advised, and I am satisfied, that the relevant matters requiring consideration under the provisions of s 2.10 of SEPP B&C have been considered; and

3. the Proposed Development is acceptable subject to the imposition of the Parties’ agreed conditions of consent;

4. in relation to the provisions of Bayside Local Environmental Plan 2021 (BLEP):

1. the Subject Site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.3 of BLEP and the Proposed Development, including the proposed demolition works, is permitted with consent in the R2 Zone, and regard has been had to the objectives of the R2 zone in determining the Applicant’s DA;

2. the provisions of cl 4.3 concerning the height of buildings (HoB), the Subject Site is subject to a HoB development standard of 8.5m and the Proposed Development complies with this standard;

3. the provisions of cl 4.4(2E) concerns the maximum floor space ratio (FSR) applicable to development on the Subject Site which is 0.55:1 and the Parties agree, and I am satisfied, that the Amended Proposal complies with the FSR standard;

4. in relation to the provisions of cl 6.1 concerning acid sulphate soils, the Subject Site is classified as Class 5 acid sulphate soils land and the site is located within 500m of land mapped as containing Class 3 acid sulphate soils, and:

1. as the Proposed Development does not involve works below 5 metres Australian Height Datum (AHD) or works that will lower the water table below 1 metre AHD, on adjacent Class 1, 2, 3 or 4 land, the Proposed Development does not engage cl 6.1 of BLEP and an acid sulphate soils management plan is not required as part of the DA;

5. the Proposed Development includes minor excavation and fill that is defined as ‘earthworks’ under BLEP, and:

1. pursuant to the provisions of cl 6.2(3) of BLEP the consent authority, or the Court on appeal, must consider the earthworks matters identified under subcll (a) to (h) of cl 6.2(3) prior to the grant of any development consent for earthworks; and

2. the Parties have confirmed, and I am satisfied, that, the relevant matters have been considered are suitably addressed by the Proposed Development;

6. pursuant to the provisions of cl 6.3(2) of BLEP, development consent must not be granted unless the consent authority, or the Court on appeal, is satisfied of the stormwater management matters identified under subcll (a) to (e) of cl 6.3(2), and the Respondent has confirmed, and I am satisfied that, subject to the Parties’ agreed conditions of consent:

1. water sensitive urban design principles are incorporated into the design of the Proposed Development; and

2. riparian, stormwater and flooding measures are integrated as part of the Proposed Development; and

3. the Applicant’s stormwater management system includes all reasonable management actions to avoid adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways, receiving waters and groundwater systems; and

4. if any potential adverse environmental impact cannot be feasibly avoided, the Proposed Development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways receiving waters and groundwater systems; and

5. the Proposed Development is designed to maximise the use of water permeable surfaces on the site having regard to the soil characteristics affecting on-site infiltration of water;

7. as the Subject Site is located within the Australian Noise Exposure Forecast (ANEF) Contour, the DA is subject to cl 6.8 of BLEP, and:

1. pursuant to the provisions of cl 6.8(3) of BLEP, the consent authority, or the Court on appeal, must consider matters identified under cl 6.8(3)(a) to (c); and

2. having considered such matters, the Parties have confirmed, and I am satisfied, that the Proposed Development is acceptable subject to the Parties’ agreed conditions of consent;

5. in relation to the provisions of RDCP, the Parties have advised, and I am satisfied, that the Proposed Development, as amended, meets the relevant controls within RDCP, or if not, the Proposed Development, as amended, achieves the objectives of those controls such that it represents a reasonable alternative solution meriting the application of flexibility in the application of those controls as required under the provisions of s 4.15(3A)(2) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the DA;

2. the Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EP&A Act, including the submissions received in response to notification which have been considered by the Parties in reaching agreement;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

13. The Court notes that:

1. the Respondent, as the relevant consent authority, has agreed to the Applicant amending the Application Class 1 pursuant to section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 so as to rely on the following amended materials:

Document Description	Prepared By	Date
Drawing number DA 02 – Floor Plans (Issue E)	Cornerstone Design	19 June 2023
Drawing number DA 03 – Elevations (Issue E)	Cornerstone Design	19 June 2023
Drawing number DA 04 – Section, Streetscape & Driveway Profile (Issue E)	Cornerstone Design	22 June 2023
Drawing number DA 08 – GFA Calculations & Landscape Calculations (Issue D)	Cornerstone Design	19 June 2023
BASIX Certificate number 1334097S_03	Max Brightwell	20 June 2023

2. the Applicant filed the abovementioned amended materials with the Court (and with the consent of the Respondent) on 23 June 2023.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for development application number DA-2022/380, as amended, for substantive demolition of existing buildings (retention of the southern side wall of the dwelling) and construction of a new two-storey dwelling and in-ground swimming pool on land identified as Lot 1 in Deposited Plan 928656 and known as 7 Farr Street, Banksia NSW 2216, subject to the conditions included at Annexure A.

M Chilcott

Commissioner of the Court

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Annexure A (296751, pdf)

Decision last updated: 20 July 2023