Humel v Northern Beaches Council

[2023] NSWLEC 1750

Land and Environment Court

New South Wales

Medium Neutral Citation:

Humel v Northern Beaches Council [2023] NSWLEC 1750

Hearing dates:

Conciliation Conference on 9 November 2023

Date of orders:

8 December 2023

Decision date:

08 December 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application DA-2022/1736, as amended, for demolition and construction of a dwelling house with attached secondary dwelling, swimming pool, landscaping works and ancillary site works on land at 6 Dick St, Freshwater NSW, 2096 (being proposed Lot 2 in an approved but unregistered subdivision of Lot A in DP 403609 and Lot 202 in DP 1126065), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – dwelling house – pool – secondary dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

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

Warringah Local Environmental Plan 2011

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Benjamin James Humel (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
WMW Lawyers (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/168804

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the deemed refusal by the Northern Beaches Council (the Council) of DA No 2022/1736 (the Development Application) for demolition and construction of a dwelling house with attached secondary dwelling, swimming pool, landscaping works and ancillary site works (the Proposed Development) at 6 Dick St, Freshwater NSW, 2096 (being proposed Lot 2 in an approved but unregistered subdivision of Lot A in DP 403609 and Lot 202 in DP 112605) (the Site). The subdivision was approved by development consent No. DA2022/0926.

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 site and at Court. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021.

4. The amended plans modified the ground floor secondary dwelling to retain a rock outcrop, reduced the amount of excavation, reduced the north eastern corner of the upper level, altered balcony and planter locations, added privacy measures, lowered the building height and adjusted landscaping. The amended plans and related documents are noted at the end of this Judgment.

5. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development, as amended, with conditions at Annexure A.

6. Section 34(3) of the LEC Act requires me to 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.

7. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement (the Statement) provided on 10 November 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

Jurisdictional matters

8. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters that apply.

9. The Site is zoned R2 Low Density Residential under the Warringah Local Environmental Plan 2011 (WLEP). Development for the purpose of dwelling houses and secondary dwellings is permissible with consent in the R2 Zone.

10. I have had regard to the relevant objectives of the R2 Zone and the Proposed Development is consistent with them.

11. Having regard to the clauses of the WLEP that the parties have identified apply to the Site and the Proposed Development, I am satisfied with the parties’ analysis and conclusions in the Statement (paragraphs 33 to 40) that the development complies with the relevant jurisdictional requirements.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

12. The Site has a historical residential use and is located within a residential locality. The Amended DA seeks to continue the long standing existing residential use. Based on historical records, there is no suggestion that the Site would have been contaminated and s 4.6 of the Resilience and Hazards SEPP has been considered.

13. Chapter 2 (Coastal Management) applies to the Site. The Site is located in the Coastal Use Area. The parties have considered whether the Development is likely to have an adverse impact on the matters in s 2.11(1)(a) and are satisfied for the purposes of s 2.12(1)(b) that the Development is designed, sited and will be managed to avoid any adverse impacts in respect of those matters. The parties have considered the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

14. For the purposes of s 2.12, the Development is not likely to cause an increased risk of coastal hazards on the land or other land because of its location uphill away from the coastline.

15. For the purposes of s 2.13, there are no relevant provisions of any certified coastal management program that applies to the Land.

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

16. The aim of the BASIX SEPP is to establish a scheme to encourage sustainable residential development and requires the submission of a BASIX certificate to accompany an application for development consent for any BASIX affected building development.

17. The DA is accompanied by BASIX Certificate No. 1287834M_04 dated 27 October 2023.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

18. Chapter 2 of the Biodiversity and Conservation SEPP contains provisions relating to the clearing of native vegetation in NSW. This chapter seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the state, and to preserve the amenity of non-rural areas of the State through the appropriate preservation of trees and other vegetation.

19. The Amended DA proposes some tree removal. However, the Site is to be replanted in accordance with the landscape plan which is to the satisfaction of Council.

Warringah Development Control Plan (WDCP)

20. WDCP applies to the Site. An assessment against the relevant provisions are contained in the SEE from pages 15 to 38. The SOFAC identified the relevant WDCP provisions that were of concern. The experts agree that the Amended DA now meets the relevant objectives of the DCP.

Remaining matters in s 4.15(1) EPA Act

21. The parties agree that the Amended DA can be approved taking into consideration the matters in ss 4.15(1)(b) – (e) of the EPA Act.

Public Participation

22. The DA was notified in accordance with the Respondent’s Community Participation Plan between 20 October and 8 November 2022. Two submissions were received during the notification period and further submissions were received from the same objectors in response to the amended plans. The submissions were before the Court at the s 34 Conference. The neighbouring objectors were unable to attend the site view for the s 34 Conference on 9 November. The Court and the parties walked up the public stairs between the Site and the neighbour’s house to the north and were able to consider and assess the neighbour’s perceived view loss concerns.

23. The parties have considered the submissions and are satisfied that the Amended DA has had regard to those submissions where reasonable and the Court is satisfied that the neighbouring objectors have been accorded procedural fairness.

Conclusion

24. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

25. 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. 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.

Notations

26. The Court notes that:

1. Northern Beaches Council, the Respondent, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application No DA2022/1736 in accordance with the following documents (Amended Development Application):

Architectural Plans
Drawing No.	Dated	Prepared By
DA03 Rev D Ground Floor Plan	28.8.2023	Humel Architects
DA04 Rev C First Floor Plan	28.8.2023	Humel Architects
DA05 Rev E Second Floor Plan	9.11.2023	Humel Architects
DA06 Rev C Roof Plan	28.8.2023	Humel Architects
DA07 Rev C Landscape Area Calculations	28.8.2023	Humel Architects
DA08 Rev E East & North Elevations	9.11.2023	Humel Architects
DA09 Rev C South & West Elevations	28.8.2023	Humel Architects
DA10 Rev D Section A-A & B-B	28.8.2023	Humel Architects
DA11 Rev D Section CC Side Boundary and Envelope and Height Plane 3D Site Assessments	28.8.2023	Humel Architects
Landscape Plans
Drawing No.	Dated	Prepared By
Sht-101 E Ground, First Floor & Roof Landscape Plan	22.9.2023	Jamie King Landscape Architect
Sht-102 E Second Floor Landscape Plan	22.9.2023	Jamie King Landscape Architect
Sht-102 E Details And Notes	22.9.2023	Jamie King Landscape Architect
Basix Certificate 1287834M_04	26.10.2023	Efficient Living

2. The Amended Development Application was filed in Court on 10 November 2023.

Orders

27. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-2022/1736, as amended, for demolition and construction of a dwelling house with attached secondary dwelling, swimming pool, landscaping works and ancillary site works on land at 6 Dick St, Freshwater NSW, 2096 (being proposed Lot 2 in an approved but unregistered subdivision of Lot A in DP 403609 and Lot 202 in DP 1126065), subject to the conditions of consent in Annexure A.

L Byrne

Acting Commissioner of the Court

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Annexure A

Decision last updated: 08 December 2023