Hoda Pty Ltd v Strathfield Municipal Council

[2021] NSWLEC 1108

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hoda Pty Ltd v Strathfield Municipal Council [2021] NSWLEC 1108

Hearing dates:

Conciliation conference on 17 December 2020

Date of orders:

2 March 2021

Decision date:

02 March 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [11]

Catchwords:

DEVELOPMENT APPLICATION – construction of garage and in-ground pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Strathfield Local Environmental Plan 2012

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020)

Category:

Principal judgment

Parties:

Hoda Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
C Sorensen (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2020/153022

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Strathfield Municipal Council of Development Application DA2020/25 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 606.6m² parcel of land identified as Lot 100 in DP 1228376 at 61 Broughton Road Strathfield (the site). The DA as submitted to the Strathfield Municipal Council (Council) on 5 February 2020 sought consent for the construction of a detached single storey garage, new driveway, in-ground pool and associated works within the site. The DA was later amended to remove the new driveway. The DA was exhibited between 17 February and 2 March 2020. No submissions were received.

3. On 24 April 2020 the DA, as amended and illustrated in the DA plans prepared by BKA Architecture, Revision A dated 15/1/20, was refused by Council’s Internal Development Assessment Panel. On 22 May 2020 the Applicant lodged this Class 1 Appeal with the Court.

4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the s 34AA conciliation conference held on 17 December 2020. Due to the Court’s COVID-19 Pandemic Arrangements Policy (December 2020) restrictions in place at the time, and as agreed between the parties, there was no site view as part of the s 34AA conciliation process, and no oral submissions were taken.

5. At the conciliation conference the parties advised they had reached an agreement, which had been signed by them and filed with the Court on 10 December 2020. A copy of that agreement and other associated documents, including the final DA architectural and landscape plans, and a revised BASIX certificate were filed with the Court on 14 December 2020.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 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 how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

7. The relevant jurisdictional matters in relation to the Strathfield Local Environmental Plan 2012 (SLEP 2012) are:

1. The development is for the purposes of ancillary structures, which is a use permissible with consent in the R2 Low Density Residential Zone (R2 Zone), and is consistent with the objectives of the R2 Zone.

2. The maximum height of the development, at 8.02m, complies with the 9.5m height of buildings development standard at cl 4.3 of the SLEP 2012.

3. The floor space ratio (FSR) of all the development on the site, at 0.58:1, complies with the 0.6:1 FSR development standard at cl 4.4 of the SLEP 2012.

8. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), a BASIX Certificate numbered A366635_02 dated 9 December 2020 has been provided demonstrating compliance with the BASIX SEPP, as referred to in the s34 agreement and Condition 1 of the consent.

9. In relation to the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Non-Rural Vegetation SEPP), the development complies with the aims of the Non-Rural Vegetation SEPP as it includes measures to protect the Port Jackson fig tree located on the adjoining property, as set out in the Tree Management Plans dated 01/12/20 and referred to in Conditions 1 and 18 of the consent.

Disposal of proceedings in accordance with the parties’ decision

10. 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’ agreement.

11. The Court orders:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Site Plan	DA-003	D	24/11/20	BKA Architecture
Excavation Plan	DA-004	D	24/11/20	BKA Architecture
Ground Floor Plan	DA-100	D	24/11/20	BKA Architecture
Roof Plan	DA-101	D	24/11/20	BKA Architecture
Elevation	DA-200	D	24/11/20	BKA Architecture
Section	DA-300	D	24/11/20	BKA Architecture
Colour Sample Board	DA-600	D	24/11/20	BKA Architecture
Landscape plans
Hardscape Plan	LPDA 20 – 104/1	E	02/12/20	Conzept Landscape Architects
Landscape Plan	LPDA 20 – 104/2	E	02/12/20	Conzept Landscape Architects
Details	LPDA 20 – 104/3	E	02/12/20	Conzept Landscape Architects
Details	LPDA 20 – 104/4	E	02/12/20	Conzept Landscape Architects
Specification	LPDA 20 – 104/5	E	02/12/20	Conzept Landscape Architects
Reports
Tree Management Plan prepared by Tree Wise Men dated 1 December 2020
BASIX Certificate no. A366635_02 prepared by Outsource Ideas Pty Ltd dated 9 December 2020

2. The appeal is upheld.

3. Development Consent is granted to Development Application No. DA2020/25 for the construction of a detached single storey garage, in-ground pool and ancillary works at 61 Broughton Road, Strathfield, subject to conditions contained in Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (228822, pdf)

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Decision last updated: 02 March 2021