John Welsh trading as on behalf of Robert Charles Johnston v Sutherland Shire Council

Case •

[2023] NSWLEC 1370

•

14 July 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: John Welsh trading as on behalf of Robert Charles Johnston v Sutherland Shire Council [2023] NSWLEC 1370
Hearing dates: 29 May 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction:Class 1
Before: Porter AC
Decision:

The Court orders that:

(1) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of the consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000, approves the application to amend development application 21/1070 filed with the Court on 29 May 2023 by including and substituting the amended plans and documents referred to in Annexure A.

(2) The appeal is upheld.

(3) Development application 21/1070 (as amended on 29 May 2023) for alterations and additions to an existing dwelling house and construction of a carport and entry bridge on Lot 21 in DP 529201, known as 173 Peninsular Road Gray Point, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

(4) The exhibits, other than Exhibits A, B and 2 are to be returned to the party that tendered them.

Catchwords:

DEVELOPMENT APPLICATION - Alterations and Additions to Existing Dwelling – Driveway – Easement – Right of Way – Contentions Resolved - Orders

Legislation Cited: Conveyancing Act 1919, s 88K
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7,8.11, 8.14
Environmental Planning and Assessment Regulation 2000, cl 55
Government Information (Public Access) Act 2009
Land and Environment Court Act 1979, s 34AA, 39
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 2.9, 2.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.11, 4.6
Sutherland Shire Local Environmental Plan 2015 cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17
Cases Cited:

Williams v State Transit Authority of New South Wales [2004] 60 NSWLR 286

Texts Cited:

Australian/New Zealand Standard AS/NZS 2890.1:2004 – Off-Street Car Parking (AS2890.1)

Australian/New Zealand Standard AS/NZS 2890.2:2018 – Off-Street Commercial Vehicle Facilities (AS2890.2)

Sutherland Shire Development Control Plan 2015

Sutherland Shire Environmental Specification 2009 Policy – Stormwater Management

Category:Principal judgment
Parties: John Welsh trading as on behalf of Robert Charles Johnston (Applicant)
Sutherland Shire Council (Respondent)
Representation:

Counsel:
T To (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Watkins Tapsell Solicitors (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2022/352834
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: This is an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 21/1070, lodged with Sutherland Shire Council on 14 October 2021. Following the lodgement of further information to Sutherland Shire Council on 16 November 2022, the Class 1 appeal was filed with the Court 23 November 2022 (Exhibit 1, Tab 1, Page 12).

  2. The Applicant in these proceedings, John Welsh trading as on behalf of Robert Charles Johnston, seeks development consent for alterations and additions to the existing dwelling and construction of a carport and entry bridge at 173 Peninsular Road, Grays Point can be summarised as follows:

  • Partial demolition of the ground floor, roof and other associated areas;

  • Construction of a ground floor addition;

  • Construction of a first floor addition;

  • Construction of a double carport with associated driveway and pedestrian access ‘bridge’ between the carport to the dwelling; and

  • Tree removal (from the Respondent’s nature strip)

  1. The Applicant filed amended plans and further information to the Court on 12 May 2023 and 24 May 2023. At the commencement of the hearing, the relevant documents (including those considered in the planning and traffic joint expert reports) and new documents relating to in principle agreement for drainage easement access were tendered as Exhibits B, C and D.

  2. The amendments and further information include:

  • Changes to the driveway gradient and reduced finished floor levels to meet the Respondent’s requirements;

  • Reduction in height of the carport roof, including modifying the carport roof from a skillion to a flat roof and removal of the eave overhang adjacent Peninsular Road;

  • Reduced eave width from 450mm to 300mm along the southern elevation to increase solar access to the south;

  • Solar access diagrams; and

  • In principle agreement from adjoining neighbours to provide access for the proposed easement and stormwater drainage system.

  1. The appeal was listed for a conciliation conference on 29 May 2023, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act).

  2. Commencing on site, the Court heard the oral concerns from representatives of the adjoining neighbour at 171 Peninsular Road, Grays Point in objection to the proposal. Driveway access to 171 Peninsular Road is currently across part of the subject site. The concerns expressed by the objector’s representatives at the on-site viewing are as follows (Exhibit 9):

  • The proposed development will remove the only access to 171 Peninsular Road;

  • The driveway access to 171 Peninsular Road across the subject site has existed from approximately 1973 following the subdivision in 1968;

  • Supreme Court proceedings had commenced on this issue, seeking an injunction against the owner of the subject site and pursuant to the Conveyancing Act 1919, a s 88K application is sought to preserve the existing access across 173 Peninsular Road;

  • There is no other access available to 171 Peninsular Road, with consideration to the sloping nature of the area; and

  • The Respondent has previously advised the owners of 171 Peninsular Road that no other access would be allowed.

  1. The concerns expressed will be discussed further at [24]-[84].

  2. At the on-site viewing, the Court’s attention was drawn to the sloping nature of the area, nearby properties with ‘bridge’ style access, setback and building location, privacy between dwellings, existing steeply sloping driveways and a potential location of a carport/pedestrian access to service 171 Peninsular Road discussed in the planning joint expert report (Exhibit 3).

  3. Given the steeply sloping nature of the locality, the parties agreed that the engineers would provide a supplementary joint expert report on access to 171 Peninsular Road with consideration of the option within the planning joint expert report (Exhibit 8).

  4. At the conclusion of the on-site viewing, the parties agreed that the issues raised in the contentions and through objections had been resolved through the joint reports, agreed conditions of consent and amended plans (Exhibits 3, 4, 5, 7 and 8). The Respondent indicated that they were unable to enter into a conciliation agreement. Accordingly, I terminated the conciliation conference pursuant to s 34AA(2)(b)(i) of the LEC Act and proceeded to a hearing.

  5. Notwithstanding that the Respondent agrees that all contentions have been resolved, I am required to undertake an assessment of the proposal pursuant to s 4.15 of the EPA Act in the Court’s capacity in exercising the functions of the consent authority, in order to determine if development consent should be granted.

The site and locality

  1. The subject site is known as 173 Peninsular Road Grays Point, legally known as Lot 21, DP 529201. It is an irregular shaped property with a site area of approximately 556m2. The frontage to Peninsular Road is 15.26m, the rear boundary is 19.045m and the southern side boundary is 29.89m. Running adjacent to 171 Peninsular Road, the northern side boundary is irregular shaped. The rear portion of the northern side boundary is 18.77m, which then indents to the south for approximately 5.4m and then traverses to the street for 17.985m (Exhibit 1, Tab 1, Page 68).

  2. Adjoining the ‘indented’ northern boundary is 171 Peninsular Road (Lot 22, DP 529207). Irregularly shaped, the lot narrows towards Peninsular Road and widens at the rear of 169 Peninsular Road. Driveway access to 171 Peninsular Road is currently through a driveway traversing over the subject site. An extract from the Survey Plan by Axiom Spatial Surveyors, dated 21 March 2022 Revision 1 (Exhibit 1, Tab 1, Page 68) is reproduced below:

  1. Consistent with surrounding properties in the local area, the subject site sharply slopes from Peninsular Road to the rear, from Reduced Level (RL) 22 down to an approximate RL 11.89 (Exhibit 1, Tab 1, Page 68).

  2. The subject site is currently occupied by a part one, part two storey dwelling. As per the Respondent’s Amended Statement of Facts and Contentions (ASOFAC) (Exhibit 2), access to the subject site is via pedestrian only access down a set of unauthorised stairs from Peninsular Road. There is currently no car parking or vehicular access for the subject site and a previous set of access stairs that provided access to the subject site and 171 Peninsular Road has been removed. The subject site contains established trees, landscaped areas and rock formations.

  3. Peninsular Road is a relatively long, winding road with dwellings located above and below the road. The built form in the area is predominantly low-density residential dwellings with substantial vegetation and small pockets of on street parking. The streetscape contains a mix of dwellings located close to the road, dwellings located via longer driveway access to the rear of those dwellings or dwellings located higher up from the street (to the east). Egress to these properties includes a mix of carports, garages, stairways and elevated pedestrian and/or carport structures.

  4. The subject site is zoned C3 Environmental Management, and the proposed development is permissible with consent pursuant to the Sutherland Local Environmental Plan 2015 (SSLEP 2015).

  5. In accordance with the requirements of cl 2.3 SSLEP 2015, the objectives are:

To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

To provide for a limited range of development that does not have an adverse effect on those values.

To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.

To limit development in the vicinity of the waterfront so that the locality’s natural qualities can dominate.

To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.

To share views between new and existing development and also from public space.

Expert evidence

  1. In accordance with its usual practice, the Court directed experts in planning, traffic and stormwater to confer in relation to nominated contentions prior to the commencement of the proceedings.

  2. Expert evidence for the planning issues was submitted in a joint expert report by Mr Ben Black for the Applicant and Mr Glenn Apps for the Respondent.

  3. Expert evidence for the stormwater issues was submitted in a joint expert report by Mr Joe Bacha for the Applicant and Mr Grant Rayner for the Respondent.

  4. Expert evidence on the traffic issues was submitted in a joint expert report by Mr Paul Corbett for the Applicant and Mr Grant Rayner for the Respondent. A supplementary joint expert report was filed during the hearing on 29 May 2023 in response to the planning joint expert report’s consideration of a potential carport and pathway access to 171 Peninsular Road.

  5. The respective experts were not required to give oral evidence.

Issues

  1. The Respondent’s contentions from the ASOFAC (Exhibit 2) can be summarised as follows:

  • Inadequate topography response from the proposed elevated carport and ‘bridge’ access from the carport to the dwelling (Contention 1).

  • Overshadowing to the property to the south (Contention 2).

  • Stormwater and drainage easement over downstream properties (Contention 3).

  • Denial of access to adjoining property 171 Peninsular Road, particularly by emergency vehicles including ambulance, fire and police services (Contention 4).

  • Public interest of the matters raised by objectors in their submissions (Contention 4) which can be summarised as:

  • Submissions 1 and 2 (Exhibit 1, Tab 2, Pages 1-10, Exhibit 6 and Exhibit 9):

  • Concerns about removal of vehicular access to 171 Peninsular Road;

  • A right of way has been exercised for many years across the subject site to access both 171 Peninsular Road and the subject site, including a portion of land on 171 Peninsular Road that has been used as car parking;

  • A propriety interest arises from the ongoing arrangement; and

  • Submission of a portion of a copy of a plan indicating that the ‘existing drive to remain as rear access’ (outside of the reference to receiving this information through the Respondent’s GIPA process, the origin is unclear from the submitted information and has not assisted in the consideration of this concern).

  • Submission 3 (Exhibit 1, Tab 2, Page 11):

  • Concerns about a reduction of on street carparking, removal of right of way to 171 Peninsular Road, road integrity, verge stability and retaining walls;

  • The proposal detracts from the aesthetic of the area, removal of vegetation, ecological habitat; and

  • Reduction in solar access to 175 Peninsular Road

Resolution of the contentions raised by the Respondent

  1. Through the expert joint report process, filing of amended plans and further information, a deferred commencement condition relating to drainage via an agreed easement and general conditions of consent, the contentions raised by the Respondent were agreed by the parties to be resolved.

Contention 1 – The Proposed Carport and Bridge

  1. The Respondent’s initial contention raised that the proposed carport did not comply with the front setback and height of the Sutherland Shire Development Control Plan 2015 (SSDCP), and that both the carport and pedestrian ‘bridge’ were unacceptably elevated out of the ground.

  2. The expert planners, Mr Black and Mr Apps considered Chapter 34 of the SSDCP relating to carports. The planning experts agree that whilst the proposed carport may not comply with the controls, the SSDCP acknowledges sites where the numerical controls are not able to be achieved. The experts agree that the variations to the carport controls are acceptable and that the raised issues within the contentions are resolved, for the following reasons from the planning joint expert report (Exhibit 3):

  • The topography of the site and existing dwelling preclude location of the proposed carport elsewhere;

  • With consideration of the topography of the subject site and surrounding land in the area, the proposed carport located close to the street is not out of keeping with the existing streetscape;

  • The proposed carport provides car parking for the dwelling and will not obscure any views, including views to the waterway; and

  • Whilst there was some disagreement over the need for the proposed carport roof to be reduced, the change of roof from a skillion design to a flat roof and deletion of the proposed eave overhang has resulted in a height decrease of 768mm.

  1. I consider, based on the evidence of the planning experts that the location, siting and height of the carport is acceptable with respect to achieving the objectives of the controls of the SSDCP despite the variations proposed. I will deal with the associated access concerns to 171 Peninsular Road expressed by the objectors further below within Contention 4.

  2. With respect to the elevated pedestrian bridge, the planning experts agree in the joint expert report that:

  • The walkway has been designed to be adjacent to the carport and provides convenient access to the dwelling from the street and carport;

  • The existing access comprising timber stairs and landings are visually obtrusive;

  • The front setback provides access to the street and allows for landscaping; and

  • The design of the bridge is appropriately ‘tucked’ alongside the carport.

  1. I consider, on the basis of the agreed evidence between the planning experts, that the elevated pedestrian bridge minimises its environmental impacts, provides direct access to the dwelling and is consistent with the existing and future character of the area. Despite the non-compliances with the relevant provisions of the SSDCP, based on the planning evidence, I conclude that the proposal is consistent with the provisions of the SSDCP, responds appropriately to the topography of the site and that the planning related matters of the contention have been resolved.

  2. In response to Contention 1c, the Respondent raised concerns the proposed driveway profile between the subject site and public domain. In particular,, that the proposal would result in a raised road reserve that would require a crash barrier into the road reserve.

  3. The expert traffic engineers, Mr Rayner and Mr Corbett, considered an amended first floor plan included in Annexure B of their joint expert report (Exhibit 5), that they agree resolves the contention as:

  • The amended proposed driveway profile is consistent with the driveway profiles required by the Respondent;

  • The amended proposed driveway profile shows a steeper 15% grade at the base of the driveway, allowing a reduction of the Finished Floor Level for the carport by 137mm (from RL 22.625 to RL 22.488); and

  • The amended driveway arrangements are acceptable from an engineering perspective and compliance with AS/NZS 2890.2:2018 – Off-Street Commercial Vehicle Facilities.

  1. The amended driveway details shown in Annexure B of the traffic joint expert report have been included in the amended plans tendered by the Applicant (Exhibit B). On the basis of the opinions of the expert traffic engineers, their joint expert report, the amended plans and associated conditions of consent in Annexure A, I conclude that the contention raised by the Respondent and the relevant traffic engineering standards are met.

  2. Acknowledging the concerns of the objector in relation to a reduction of on-street parking, based on my observations of the subject site and locality, I consider that the proposal does not unreasonably reduce on-street parking.

Contention 2 - Overshadowing

  1. The Respondent’s contention in relation to overshadowing raised potential concerns that the proposed reduced side setback and its associated bulk did not comply with the required setback of 1.5m and as a result, overshadowing was increased unacceptably to the adjoining southern dwelling at 175 Peninsular Road. Further information through shadow diagrams was sought in the particulars. An objection was also received about solar access to 175 Peninsular Road.

  2. Control 2.2 of the SSDCP requires a side setback of 1.5m and a front setback of 7.5m or the established street setback. The proposed additions have a front setback of 7.346m to the building line. The existing dwelling and proposed additions have a side setback of 1.218m on the ground floor and 1.358m on the first floor along the southern boundary. The northern boundary side setbacks exceed the minimum setback.

  3. For adjoining dwellings, Control 5.2.7 of SSDCP requires three hours of solar access be provided to 10m2 of the private open space and living areas between 9am and 3pm. Control 5.2.7.c allows reduced solar access where a proposed development is generally compliant with the planning controls and consideration of circumstances such as orientation and site constraints.

  4. The expert planners have considered the proposed side setback in their joint expert report, including further shadow diagrams contained within the joint expert report’s Annexure C that were ultimately tendered to form Exhibit B. The expert planners agree that the contention has been resolved for the following reasons:

  • The SSDCP contemplates reduced setbacks for existing dwellings up to 900mm;

  • The existing ground floor setback of 1.218m, including the proposed ground floor extension and proposed first floor extension of 1.358m on the first floor is consistent with the intent of the SSDCP in allowing existing setbacks to be maintained for alterations and additions developments;

  • The SSDCP contemplates reduced solar access for a southern neighbour where a proposal is generally compliant with the relevant controls and the impact is the result of orientation; and

  • The further information at Annexure C of the joint expert report, including 3D solar access diagrams, demonstrates that solar access to the southern neighbour’s living room at 175 Peninsular Road located on the upper floor (which is north and west/north-west facing) is received for the required amount under the SSDCP.

  1. Solar access to the private open space of 175 Peninsular Road is not specifically addressed in the planning joint expert report. However, in my assessment, the solar access diagrams demonstrate solar access is received to the rear private open space from at least 12pm onwards, if not earlier, for a period of three hours.

  2. Based on the agreed evidence of the expert planners, the solar access diagrams and acknowledging the orientation of the site, I conclude that adequate solar access has been maintained to 175 Peninsular Road as sought in the SSDCP and that the concerns raised in the objection have been addressed.

Contention 3 – Stormwater Management

  1. The Respondent’s contention stated that the proposal had failed to demonstrate they were unable to obtain a drainage easement over downstream properties to connect to the public drainage network within 171 or 179 Peninsular Road in accordance with clause 5.9 of the Sutherland Shire Environmental Specification 2009 Policy – Stormwater Management (SS Stormwater Management Policy).

  2. The expert stormwater engineers, Mr Rayner and Mr Bacha considered the Class 1 filed plans and a diagram of the proposed easement included in Annexure B of their joint expert report (Exhibit 4). They agree that the contention has been resolved based on the following key parts from their joint expert report:

  3. “…The preferred method of discharge of stormwater from the site is through a drainage easement burdening the neighbouring downstream properties and connection into the public drainage system in accordance with Councils Stormwater Management specification clause 5.9 requirements.” (paragraph 9)

  • If an easement cannot be obtained, the preferred alternate method of stormwater design and discharge should consist of an on-site detention system to the details specified in the SS Stormwater Management Policy and technical requirements specified in the joint expert report (paragraph 10)

  • At the commencement of the hearing, the Applicant tendered an in-principle agreement to grant access for a drainage easement from the owners of 179 Peninsular Road and 179A Peninsular Road (Exhibits C and D).

  1. For the Applicant, Mr To’s submission detailed that the drainage easement agreements were based on offers from the Applicant that were informed by a valuation to acquire those easements. These easements are consistent with the location considered by the stormwater experts.

  2. Mr To submitted that the proposed conditions of consent require the creation of the easement prior to the issue of an occupation certificate. On this basis, it was submitted that the Court can be satisfied that Contention 3 is resolved and that the provisions of cl 6.4 stormwater of the SSLEP 2015 are also satisfied. The submission, including the proposed condition, was agreed to by the Respondent.

  3. The agreed proposed conditions of consent within Exhibit 7 include a deferred commencement condition for the submission of detailed stormwater drainage plans showing a connection to the Respondent’s piped drainage system via a private easement.

  4. With consideration of the evidence of the expert stormwater engineers, in principle agreement from the owners of the properties burdened by the easement, the proposed deferred commencement condition consistent with the considered requirements of the expert stormwater engineers, submissions from Mr To, and the exceedance of landscaped area proposed on site (Exhibit B), I conclude that Contention 3 has been addressed by the proposal and I am satisfied of those matters stated at cl 6.4(3) of the SSLEP.

Contention 4 – Public Interest

  1. The Respondent’s ASOFAC states that the grant of consent for the proposal would not be in the public interest having regard to the above contentions and the matters raised by the objectors in their submissions. The contention also raises concerns relating access to 171 Peninsular Road, including by emergency vehicles such as ambulance, fire and police services.

  2. The objections received from 171 Peninsular Road and 175 Peninsular Road object to the proposal on the basis that the development would remove access to 171 Peninsular Road (Exhibit 1, Tab 2 and Exhibit 6).

  3. The concerns expressed regarding access to 171 Peninsular Road are summarised below:

  • The proposal would remove access to 171 Peninsular Road.

  • Despite the nature of the subdivision in May 1968, a right of way has been exercised by the owners of 171 and 173 Peninsular Road where:

  • Vehicular access to both properties was through the concrete driveway connecting to 171 Peninsular Road.

  • The owners of 173 Peninsular Road have utilised a portion of 171 Peninsular Road to park their cars.

  • The owners of 173 Peninsular Road have occupied a portion of 171 Peninsular Road on the other side of the driveway.

  • Submission of a partial plan with reference to ‘existing drive to remain as rear access’, was obtained from the Respondent through a Government Information (Public Access) Act 2009 application. There is no reference in the email or on the plan regarding what the plan is in relation to.

  • The owners of 171 Peninsular Road have commenced proceedings against 173 Peninsular Road and several other parties regarding a right of carriageway. A copy of the Statement of Claim to the Supreme Court (proceedings 2023/109892) is attached to the submission.

  • The Court should take into consideration how 171 Peninsular Road would be provided effective and/or safe access by land to and from their property, including:

  • That the only safe and effective pedestrian and vehicular access to and from 171 Peninsular Road at present is over the existing right of carriageway claimed over the driveway.

  • The Respondent’s previous discussions regarding not permitting the construction of any other access, notwithstanding having approved the subdivision in 1968; and

  • The Respondent’s proposed agreement to the proposed development.

  1. The Applicant and Respondent are in agreement that the access issues raised by 171 Peninsular Road should not preclude the grant of consent and that Contention 4 has been resolved based on the following:

  • There is no registered easement on the title or survey of 173 Peninsular Road requiring access to 171 Peninsular Road (Exhibit 1, Tab 1, Pages 6-7 and 68 respectively).

  • There is a separate dispute between the Applicant and owners of 171 Peninsular Road regarding the existence of any easement which has culminated in the recently commenced proceedings in the Supreme Court (amongst other matters sought). These proceedings are a separate matter and not a relevant planning consideration.

  • The expert planners agree in the planning joint expert report that 171 Peninsular Road has an access handle to Peninsular Road that is approximately 5.43m wide, which is of sufficient width to accommodate a carport at street level with access stairs connecting down to 171 Peninsular Road. An image was produced by the planners in the joint expert report to demonstrate a concept carport and stair location.

  • The supplementary joint expert report of the engineers considered the concept carport and stair location from the planner’s joint expert report (Exhibit 8). The engineers agreed that a carport (albeit a single car carport as opposed to the double carport considered by the planners) could be accommodated, including access stairs down to 171 Peninsular Road. The engineers agreed that access that complied with the relevant Australian Standards AS/NZS2890.1:2004 Parking Facilities could be achieved. An extract of the diagram of the concept carport and stairs from the expert reports is produced below:

  • There is no evidence of an application being made by 171 Peninsular Road for access being refused by the Respondent.

  1. Having considered the driveway access concerns raised by the objectors against the evidence presented by the Applicant; including an absence of a registered easement on the title of 173 Peninsular Road for access purposes, and evidence of the expert planners and expert engineers that a similar carport and / or pedestrian access could be accommodated on 171 Peninsular Road, I consider that 171 Peninsular Road will retain reasonable access to their property through the access handle connecting to Peninsular Road. I deal with the Supreme Court proceedings further at [54].

  2. With respect to the part of Contention 4 regarding safe access by emergency vehicles, I have considered the evidence of the traffic engineers joint expert report (Exhibit 5), in that the existing driveway is non-compliant with the maximum grades allowable by the relevant standards for emergency service vehicles for ambulance, fire and police. On the basis of the traffic engineers agreed evidence that access to 171 Peninsular Road by the listed emergency services would be of no impact, I conclude that this contention has been addressed by the proposal.

Supreme Court Proceedings

  1. It is also relevant to record here, that at the on-site viewing and during the hearing, I requested the parties to address any constraints on the Court’s ability to grant development consent based on the concerns expressed through Contention 4, objections for 171 Peninsular Road regarding the loss of driveway access to their property through the subject site and the Supreme Court proceedings (2023/109892).

  2. On this issue, Mr To submits that I should rely on the decision of the Court of Appeal in Williams v State Transit Authority of NSW (2004) 60 NSWLR 286 as the relevant authority. The Court has been taken to [129], in that the doctrine of lost modern grant was found to not extend to land under Torrens title (such as the subject site). Further, the title for 173 Peninsular Road is absent of a registered easement and pertinently, there is no planning reason to require an owner of unencumbered land to provide access to another. It is also submitted that the prospects of a proceedings in another court is not a relevant planning matter.

  3. I have considered Mr To’s submissions and the above caselaw. I accept Mr To’s submissions that for the purpose of these proceedings, the absence of a registered easement on the title for 173 Peninsular Road means that there is no planning reason to not grant development consent. I also accept that alternate and direct access is available to 171 Peninsular Road, on the basis of the planner’s joint expert report and the traffic engineers further joint expert report. Finally, I accept that the Supreme Court proceedings deals with the remedies that the objector at 171 Peninsular Road seeks through their objection of this appeal. On the basis of Mr To’s submissions and the above, I am satisfied that development consent can be granted notwithstanding the Supreme Court proceedings on foot.

Jurisdictional preconditions required for the grant of consent

  1. Both parties submitted to the Court that all jurisdictional preconditions relevant to the appeal have been satisfied. Noting that the Court must be satisfied in its capacity as consent authority, the parties submitted oral and written submissions how the Court can be satisfied. These are addressed throughout this judgment with the remaining jurisdictional preconditions considered below.

  2. The DA was accompanied by the written consent of the owner of the property of 173 Peninsular Road.

  3. The DA was notified between 9 November 2021 and 1 December 2021.

  4. Since the lodgement of the development application on 14 October 2021, the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 was gazetted on 30 November 2022 and repealed various business and industrial zones on 26 April 2023. As a result, the applicable zone name has changed from E2 Environmental Management to C3 Environmental Management in the SSLEP 2015. The objectives and Land Use Table remain unchanged.

  5. Clause 2.7 of the SSLEP 2015 provides that demolition requires development consent. Appropriate conditions of consent are included in Annexure A.

  6. Clause 4.3 of the SSLEP 2015, in conjunction with the Height of Buildings Map, provides a maximum height of 8.5m for the subject site. The parties agree and I am satisfied that the proposed development complies with the height development standard as shown on the amended architectural plans (Exhibit B).

  7. Clause 4.4 of the SSLEP 2015, in conjunction with the Floor Space Ratio Map (FSR), provides a maximum FSR of 0.5:1 for the subject site. The parties agree and I am satisfied that the proposed development complies with the FSR development standard as shown on the amended architectural plans (Exhibit B).

  8. The subject site is mapped as being within Class 5 Acid sulfate soils as per cl 6.1 of the SSLEP 2015. I am satisfied, and the parties agree, that the minor nature of the proposed works will not lower the water table as per cl 6.1(6) and that the requirements have been addressed.

  9. Clause 6.2 Earthworks of the SSLEP 2015 applies to the proposal, and requires that the consent authority consider the following:

6.2 Earthworks

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

…

(3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

  1. The proposal includes a minor amount of excavation with potential impacts primarily on soil and stormwater related matters described in cl 6.2(3). The impacts of the proposal on stormwater management are agreed to be acceptable by the experts through the stormwater joint expert report (Exhibit 4). The proposed conditions of consent contain appropriate measures regarding soil and minimising impacts of the development. I am satisfied that the matters of cl 6.2 have been adequately addressed on the basis of this evidence and the proposed conditions of consent in Annexure A.

  2. I am also satisfied that on the evidence relied upon above, that the concerns raised in the submissions regarding structural matters have been adequately considered and addressed by the proposed conditions of consent in Annexure A relating to demolition, damage deposits and site management, amongst others.

  3. Clause 6.4 of the SSLEP 2015, Stormwater management applies to the proposal, and requires the consent authority to be satisfied of the following:

6.4   Stormwater management

(1)  The objective of this clause is to minimise the impacts of urban stormwater on land to which this Plan applies and on native bushland and receiving waters.

(2) (Repealed)

(3)  Development consent must not be granted to development on land to which this Plan applies unless the consent authority is satisfied that the development—

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

  1. As stated at [47], I am satisfied that the development has been designed to address cl 6.4(3) on the basis of the agreed evidence within the stormwater joint expert report (Exhibit 4), exceedance of landscaped area proposed on site (Exhibit B), in principle agreement from the property owners to access the easement (Exhibits C and D) and incorporation of relevant conditions of consent.

  2. Clause 6.14 Landscaped areas in certain residential, employment, conservation and waterway zones of the SSLEP 2015 applies to the proposed development. The subject site, as mapped for the purposes of cl 6.14(3) requires 40% landscaping. The parties agree and I am satisfied that the proposal provides 45.19% landscaping and exceeds the required landscaping amount (Exhibit B).

  3. Clause 6.16 Urban Design of SSLEP 2015 applies to the subject site, and requires consideration of the following:

6.16   Urban design—general

(1)  In deciding whether to grant development consent for any development, the consent authority must consider the following—

(a)  the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b)  the extent to which any buildings are designed and will be constructed to—

(i)  strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii)  contribute to the desired future character of the locality concerned,

(c)  the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d)  the extent to which the natural environment will be retained or enhanced by the development,

(e)  the extent to which the development will respond to the natural landform of the site of the development,

(f)  the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g)  the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

(2)  In this clause, Crime Prevention Guidelines means the publication, Crime prevention and the assessment of development applications (ISBN 0 7347 0184 5), published by the NSW Department of Urban Affairs and Planning in 2001.

  1. Clause 6.17 Urban Design applies to the subject site, and requires consideration of the following:

6.17   Urban design—residential accommodation

In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following—

(a)  the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,

(b)  the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,

(c)  the extent to which the quality of the streetscape concerned will be improved by the development,

(d)  the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e)  the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,

(f)  the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting,

(g)  any opportunities for the provision of affordable housing.

  1. The proposal primarily seeks consent for alterations and additions to the existing dwelling and construction of a new carport and pedestrian ‘bridge’ structure. Clauses 6.16 and 6.17 require consideration of a number of interrelated design matters, relevantly including topography response, design quality, existing and desired character, crime prevention, environmental impacts and streetscape.

  2. Clauses 6.16 and 6.17 were not raised as an issue within the ASOFAC. The parties agree that the planning joint expert report considered a number of these matters primarily through addressing Contentions 1 and 2 (Exhibit 3) and that the clauses were satisfied by the proposal. The planners agreed that the proposal, as amended, satisfies design matters such as topography response, streetscape presentation, environmental impacts such overshadowing, safer access and appropriate design.

  3. Based on the agreed evidence of the planners, agreed submissions from the parties (including orally during the hearing) and from my own observations on site, I consider that the proposed design has adequately addressed the relevant urban design considerations including the character of the area, visual design of structures from both the streetscape (particularly the carport and pedestrian pathways), and minimising views from the foreshore, adequate landscaping and adequate minimisation of amenity impacts from the proposal.

  4. I consider that based on the evidence relied upon above, the concerns raised in the submissions regarding the aesthetics of the proposal, vegetation and its design have been addressed.

  5. The requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 apply to the proposed development. A BASIX Certificate has been provided, which satisfies these provisions and is enforced through the proposed conditions of consent in Annexure A.

  6. In accordance with State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the subject site is located within the coastal environment area and the coastal use area. Accordingly, ss 2.10 and 2.11 apply to the proposal. The provisions of the Resilience and Hazards SEPP are agreed to be satisfied by the parties and were not raised as a contention.

  7. Section 2.10 of the Resilience and Hazards SEPP requires that development consent must not be granted without consideration of the likely adverse impacts on a range of matters, summarised as environmental impacts, open space access, Aboriginal heritage and water areas.

  8. Section 2.11 of the Resilience and Hazards SEPP requires that development consent must not be granted without consideration of the likely adverse impacts on a range of matters, summarised as safe access to foreshore areas, environmental impacts to foreshore areas, visual amenity and heritage impacts.

  9. For the reasons set out in closing submissions, the parties agree, and I am satisfied that the proposal has been designed to minimise its impacts and will not cause any adverse impacts in accordance with the provisions of ss 2.10 and 2.11 due to:

  1. The minor scale of the development, which is obscured from coastal and foreshore views by existing vegetation and development in closer proximity to the foreshore area;

  2. The reasonable overshadowing impacts agreed by the planners in their joint expert report (Exhibit 3), which primarily fall outside of the public domain;

  3. The agreement by the stormwater experts for adequate stormwater management through connection to existing drainage easements in their joint expert report (Exhibit 4);

  4. The subsequent agreement from the relevant owners of those easements for drainage access (Exhibits C and D); and

  5. The imposition of the proposed relevant conditions of consent relating to stormwater.

  1. In accordance with s 4.6 contamination and remediation of the Resilience and Hazards SEPP, development consent must not be granted without consideration of the likely contamination of the land and any remediation that may be required to make the land suitable. The parties agree and I am satisfied that the provisions of s 4.6 are met on the evidence submitted in the Respondent’s Exhibit 1, Tab 1, Page 11 from the report titled ‘Planning Report’, dated 14/10/2021 that there is no contamination known for the site. I have also considered that the proposal continues the ongoing residential use of the land.

  2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapter 2 – Vegetation applies to the proposal. The proposal seeks development consent for removal of one tree on the Respondent’s land in accordance with ss 2.9 and 2.10. In accordance with the SSDCP, the proposed tree removal (being a trunk over 100mm) is captured by SEPP BC. The parties have not raised any issues over removal of the tree. The document titled ‘Development Assessment Landscape Clinic’ (Exhibit 1, Tab 1, Page 1) notes that the tree within the road reserve is of poor form and is conflicting with the overhead wires. The removal of the tree was supported, and appropriate conditions proposed to protect the other trees adjoining the proposal which have been incorporated into Annexure A.

  3. Pursuant to s 8.14(1) of the EPA Act and the provisions of SEPP BC, based on the agreed evidence and proposed conditions of consent, I am satisfied the proposal is consistent with SEPP BC. I am satisfied on the evidence that the concerns raised in the submissions regarding the proposed tree removal and the proposals impact on vegetation have been adequately considered.

Sutherland Development Control Plan 2015

  1. The SSDCP applies to the site. The following chapters are relevant to the proposal:

  1. Chapter 2 Dwelling houses in the E3 Environmental Management Zone

  2. Chapter 34 Ancillary Development

  3. Chapter 36 Roads, Vehicular Access, Traffic, Parking and Bicycles

  1. Chapter 2 Dwelling houses relates to the proposed alterations and additions to the existing dwelling, with the key controls related to the contentions provided below.

  2. Control 2.2 in the setbacks table provides a minimum side setback of 1.5m and front setback of 7.5m or the established front setback of properties within 40m of the subject site. The existing dwelling and proposed alterations and additions do not comply with the side setback controls.

  3. Control 2.2 (6) provides:

“6. The side setback may be reduced to 900mm for alterations and additions to dwellings that have an existing side setback of 900mm, where this does not impede emergency access.”

  1. Control 5.2 relates to solar access, relevantly for adjoining properties:

“5.2(7) For the neighbouring dwellings:

a. ensure 10m2 of private open space has 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);

b. ensure windows of living areas have 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);

c. consideration will be given to reduced solar access where the proposed dwelling is generally compliant with all development standards and controls, and the extent of impact is the result of orientation, site constraints, and or existing built forms;

d. overshadowing by vegetation should be ignored;

e. overshadowing by fences, roof overhangs and changes in level should be taken into consideration.”

  1. Control 6.2 relates to visual privacy between dwellings, including design measures to provide adequate privacy to key living areas such as kitchens, living rooms and dining rooms. These include offsetting windows, sill heights of at least 1.6m, glazed windows and privacy louvres.

  2. Chapter 34 Ancillary Development relates to the proposed carport and bridge, with the key controls related to the contentions provided below.

  3. Control 2.1 (2) prescribes a front setback of 7.5m.

  4. Control 2.1 also allows the below variations:

“3. Carports and hardstand spaces may be located within the street setback if:

a. The topography of the site limits alternative siting of the carport and hardstand space on the site; and

b. The siting of the carport and hardstand space is in keeping with the established streetscape character of the locality; and

c. The provision of the carport or hardstand space is essential to meeting the onsite parking requirement for the development;

d. The design of the carport does not compromise the streetscape or obscure views from the public domain.

4. A variation to the side setback may be considered if the objectives of this section are achieved and there is no adverse impact on the adjoining property, for example:

a. An open carport on a nil boundary setback;

b. Detached garage on a nil boundary setback where the topography enables views to be maintained.”

  1. Other relevant controls in relation to the contentions include:

“5. Garages, carports and hardstand spaces are to be located and designed so that they do not form dominant elements in the streetscape.

6. In areas where views from public and private areas are available, open form structures, such as carports are preferred to solid structures to minimise the impact on existing views.

….

17. The maximum height of detached garages and carports is 4.0m from ground level.

18. Hard surface areas within the street frontage are to be limited to a maximum of 50%, with the remaining 50% utilised for deep soil landscaping.

21. The overshadowing of neighbouring properties should be minimised. For the neighbouring dwellings:

a. ensure 10m2 of private open space has 4 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);

b. ensure windows of living areas have 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);

c. consideration will be given to reduced solar access where the proposed dwelling is generally compliant with all development standards and controls, and the extent of impact is the result of orientation, site constraints, and or existing built forms;

d. overshadowing by vegetation should be ignored;

e. overshadowing by fences, roof overhangs and changes in level should be taken into consideration.”

  1. Control 7 relating to Vehicular Access, Parking and Circulation, contains controls such as maximum driveway width of 6m and other related design controls.

  2. Chapter 36 of the SSDCP for Roads, Vehicular Access, Traffic, Parking and Bicycles contains further controls relating to vehicular access, traffic and carparking design.

  3. As discussed further above, I accept the agreed evidence of the parties and their experts that the proposal complies with the relevant objectives of the SSDCP, and that the variations sought to the SSDCP are acceptable.

Conclusion

  1. I accept the agreed submissions of the parties and the experts through their joint reports that the contentions have been appropriately addressed and resolved by the amended proposal (Exhibit B).

  2. Having considered the issues raised in the contentions, the issues raised through the submissions and all of the evidence tendered, I find that the proposed development warrants the grant of consent under s 4.16 of the EPA Act, subject to the conditions of consent contained in Annexure A.

Orders

  1. The Court orders that:

  1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of the consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000, approves the application to amend development application 21/1070 filed with the Court on 29 May 2023 by including and substituting the amended plans and documents referred to in Annexure A.

  2. The appeal is upheld.

  3. Development application 21/1070 (as amended on 29 May 2023) for alterations and additions to the existing dwelling and construction of a carport and entry bridge on Lot 21 in DP 529201, known as at 173 Peninsular Road, Grays Point, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

  4. The exhibits, other than A, B and 2, are to be returned to the party that tendered them.

S Porter

Acting Commissioner of the Court

**********

Annexure A (208360, pdf)

Amendments

07 August 2023 - Attached Annexure A

Decision last updated: 07 August 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

9

Williams v State Transit Authority of NSW [2004] NSWCA 179
Williams v State Transit Authority of NSW [2004] NSWCA 179