Hayek v City of Canada Bay Council

[2023] NSWLEC 1027

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hayek v City of Canada Bay Council [2023] NSWLEC 1027

Hearing dates:

Conciliation conference held on 18 January 2023

Date of orders:

20 January 2023

Decision date:

20 January 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended plans at condition 1 of the conditions of consent, described in Annexure A.

(2)   The appeal is upheld.

(3) The amended written requests made pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), filed on 14 November 2022, which seeks to vary development standards in clause 4.3 – Height, and clause 4.4 – Floor Space Ratio of the CBLEP, is upheld.

(4)   Development Application 2021/0096, as amended, for alterations and additions to an existing dwelling on Lot 42 in Deposited Plan 656109, also known as 7 Burnell Street, Drummoyne is determined by grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling - breach in minimum floor space ratio and height development standards – cl 4.6 request for variation of standards - conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 2.3, 4.3, 4.4, 4.6

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

Environmental Planning and Assessment Regulation 2000, ss 49, 55

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

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

Texts Cited:

Canada Bay Development Control Plan 2017

Category:

Principal judgment

Parties:

Saif Hayek (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
L Morphett (Solicitor) (Applicant)
R McCullouch (Respondent)

Solicitors:
Holding Redlieh (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2022/268020

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application 2021/0096 by the City of Canada Bay Council (hereafter the Council), which as amended, seeks alterations and additions to the existing garage and carport area, ground floor terrace, first floor terrace and living area, and second floor balcony, with landscaping on Lot 42 in Deposited Plan (DP) 656109, also known as 7 Burnell Street, Drummoyne, NSW (hereafter the site).

Background

2. Development Application 2021/0096 (the application) was lodged with Council on 7 May 2021, and refused by Council on 1 September 2022, following notification (with 13 written submissions received during the notification period), internal review and consideration by the Canada Bay Local Planning Panel.

3. The applicant appealed against the refusal, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), without an onsite view at the request of the parties, and held in person.

5. The Council approved the applicant to amend the plans and documents that support and amend the application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and the issues raised by residents are considered.

7. Pursuant to 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. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application 2021/0096, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Canada Bay Local Environmental Plan 2013 (CBLEP):

1. Pursuant to cl 2.3 of the CBLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent. The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the CBLEP, except for a numerical breach of the height and floor space ratio (FSR) development standards, pursuant to cll 4.3 and 4.4, respectively.

2. The amended application relies on cl 4.6 written requests, seeking a variation of the non-compliant height and FSR as designed, pursuant to cl 4.6 of the CBLEP.

3. With regards to the cl 4.6 written request seeking a height variation, it explains that the non-compliance of the height standard (of 8.5m) with a proposed maximum height of 9.11m (a variation of 7.1%) does not result in a development that is incompatible with the character of the surrounding area, nor results in adverse amenity, including solar access or view loss. The proposed height variation will not perceptibly change the presentation of the existing dwelling to the streetscape or result in adverse bulk/scale impacts to adjoining properties. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the CBLEP and the (height) development standard objectives described in cl 4.3.

4. With regards to the cl 4.6 written request seeking a FSR variation, it explains that the non-compliance of the FSR standard (of 0.5:1) with a proposed maximum FSR of 0.647:1 (a variation of 29.5%) does not result in a dwelling design that is incompatible with the character of the surrounding area nor results in adverse amenity, including privacy and view loss. The existing dwelling already has an exceedance of the FSR standard, and the proposed alterations and additions do not result in a substantial change to this breach. The proposed FSR variation is limited to the first floor extension of the living area and will not perceptibly change the presentation of the existing dwelling to the streetscape or result in adverse bulk/scale impacts to adjoining properties. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the CBLEP and FSR development standard objectives described in cl 4.4.

5. The Court must be satisfied to grant consent to the application that the cl 4.6 requests to vary the development standards are appropriately assessed, pursuant to the requirements set out in cl 4.6 of the CBLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written requests seeking variation of the height and FSR development standards sufficiently describe the environmental planning grounds to justify the non-compliances, and that strict compliance of the standards would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R2), as well as height (cl 4.3) and FSR (cl 4.4) standards. The breach in the development standards will not cause undue concern to (existing and future) surrounding residents, the streetscape, and appropriately supports those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the height and FSR standards for the proposed development.

6. I am satisfied that the requirements of cl 4.6 of the CBLEP have been addressed, and that a variation in the cll 4.3 and 4.4 development standards should be granted.

2. EPA Reg:

1. The applicant has satisfied the Court with regards to consent of landowners relevant to the application, pursuant to cl 49.

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

1. A BASIX Certificate (A479538) issued on 9 November 2022 is relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended application.

4. Canada Bay Development Control Plan 2017 (CBDCP):

1. The relevant requirements of the CBDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the CBDCP, and the Court is satisfied that the submissions received have been considered and assessed in Council’s merit assessment.

Grant of consent

9. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and potential for amenity impacts including view loss and privacy.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application 2021/0096 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. 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.

13. The Court notes that:

1. The City of Canada Bay Council, as the relevant consent authority, has approved, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application 2021/0096.

2. The amended application documents were lodged on the NSW Planning Portal on 22 December 2022 and thereafter filed with the Court.

14. The Court orders that:

1. Leave is granted to the applicant to rely on the amended plans at condition 1 of the conditions of consent, described in Annexure A.

2. The appeal is upheld.

3. The amended written requests made pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), filed on 14 November 2022, which seeks to vary development standards in clause 4.3 – Height, and clause 4.4 – Floor Space Ratio of the CBLEP, is upheld.

4. Development Application 2021/0096, as amended, for alterations and additions to an existing dwelling on Lot 42 in Deposited Plan 656109, also known as 7 Burnell Street, Drummoyne is determined by grant of consent, subject to the conditions set out in Annexure A.

Sarah Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 20 January 2023