Hornery v Northern Beaches Council

[2024] NSWLEC 1815

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hornery v Northern Beaches Council [2024] NSWLEC 1815

Hearing dates:

Conciliation conference held on 28 November 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA2023/1469 for the alterations and additions to a dwelling house on land known as 955 Barrenjoey Road, Palm Beach (Lot 8 DP 545616), as amended, is determined by the grant of consent, subject to conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 8.7,

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

Pittwater Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 5.10, 7.7, 7.8, 7.10

Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.4, 2.10, 2.11, 2.12, 2.13, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119

Category:

Principal judgment

Parties:

David Hornery (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
C Shaw (Solicitor) (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2024/232059

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA2023/1469. The DA seeks development consent for alterations and additions to a dwelling house at 955 Barrenjoey Road, Palm Beach legally known as Lot 8 in DP 545616 (site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 November 2024. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

4. I note that as part of the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

5. 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 explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

6. Owner’s consent accompanied the DA. The DA was lodged to the Respondent on 19 October 2023. The Respondent notified the DA between 30 October 2023 to 13 November 2023. Two submissions were received. At the commencement of the proceedings, two objectors expressed their concerns orally. The Court and parties benefitted from hearing these concerns from the objector’s property.

7. As the parties have reached an agreement, the parties have considered the concerns raised by objectors. The parties have advised the Court that they consider the relevant concerns to be addressed through the amended plans.

Bushfire Land

8. The site is classified as bushfire prone land in accordance with s 4.14 of the EPA Act. On the basis of the Bush Fire Report prepared by BPAD dated 22 September 2023, the parties agree and I accept that the provisions have been satisfied.

Pittwater Local Environmental Plan 2014

9. The site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP). The proposed development for works related to a dwelling house is permitted with consent in the zone and I have had regard to the objectives of the zone pursuant to cl 2.3. The parties have agreed that the proposed works are characterised as alterations and additions. I accept that such a characterisation is open on the merits of the appeal. It is therefore a decision that the Court could have made in the proper exercise of its functions and is acceptable in accordance with s 34(3) of the LEC Act.

10. The parties agree and I accept that the following applicable PLEP preconditions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 8.5m or 10m in accordance with cl 4.3(2D). I accept the parties detailed explanation in para 50b of the jurisdictional statement and reflected in the architectural plans that the development satisfies the criteria to access cl 4.3(2D) and does not exceed 10m.

3. Clause 5.10 heritage conservation applies as the site is in proximity to the heritage item known as Kumale House at 949 Barrenjoey Road, Palm Beach. I accept on the basis of Council’s assessment report that cl 5.10 has been considered.

4. Clause 7.7 geotechnical hazards applies to the site, as it is located within the associated geotechnical hazard H1 map. With consideration of the Geotechnical Report prepared by JK Geotechnics dated 4 September 2023 (Geotechnical Report), Council’s assessment report, stormwater plans, I accept that the provisions have been met.

5. Clause 7.8 limited development on foreshore area applies to the site. The amended DA proposes fencing of the swimming pool and access to the waterway within the foreshore area. I accept the parties’ agreement that the works fall within the allowable scope of 7.8(2) and that the provisions of 7.8(3) have been satisfied as shown on the architectural plans, Statement of Environmental Effects prepared by Northern Beaches Planning dated October 2023 (SEE) and Geotechnical Report.

6. Clause 7.10 essential services applies to the amended DA. With consideration of the existing services currently provided to the site, the stormwater plans and para 50e of the jurisdictional statement, I accept the parties’ agreement that the provisions have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) in relation to coastal management applies. With consideration of the Respondent’s assessment report, SEE and para’s 31-40 of the jurisdictional statement, I accept the parties agreement that ss 2.4, 2.10, 2.11, 2.12 and 2.13 have been satisfied.

12. The provisions of s 4.6 of SEPP RH apply to the site. The DA is accompanied by a SEE which states that the site has a history of residential use for many years. Accordingly, the parties agree, and I accept that the provisions of s 4.6 have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Section 2.48 of SEPP TI applies given the proximity of works to Ausgrid infrastructure. The proposed development was referred to Ausgrid who raised no concerns. Ausgrid’s requested conditions have been included at Annexure A.

14. In accordance with s 2.119, the site has frontage to a classified road. Barrenjoey Road is a classified road under the care and control of Transport for NSW (TfNSW). TfNSW provided concurrence and the recommended conditions of consent have been included at Annexure A.

State Environmental Planning Policy (Sustainability) 2022

15. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate (A488125_03) that meets the provisions of the SEPP.

Conclusion

16. 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.

17. 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.

18. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

19. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2023/1469 for the alterations and additions to a dwelling house on land known as 955 Barrenjoey Road, Palm Beach (Lot 8 DP 545616), as amended, is determined by the grant of consent, subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A 

Annexure B

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Decision last updated: 18 December 2024