Johnston v Sutherland Shire Council

[2022] NSWLEC 1713

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johnston v Sutherland Shire Council [2022] NSWLEC 1713

Hearing dates:

Conciliation conference held 13 December 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA 22/0445 and rely upon the amended plans and documents referred to in condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA 22/0445, as amended, for the construction of a detached carport for 2 cars for an existing dwelling on the land described as Lot 16 DP 12294 known as 31 Pacific Crescent, Maianbar, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – carport associated with existing dwelling – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.11

Environmental Planning and Assessment Regulation 2021, cll 23, 37

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 6.1, 6.2, 6.4, 6.5, 6.7, 6.8, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

Robert Johnston (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
R Johnston (Self-represented) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Sutherland Shire Council (Respondent)

File Number(s):

2022/252580

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application (DA) by Robert Johnston (Applicant) for the construction of a detached two-car carport (Proposed Development) associated with an existing dwelling house situated on land described as Lot 16 DP 12294, known as 31 Pacific Crescent, Maianbar (Site).

2. The Site is a long rectangular lot with frontage to the Port Hacking River. It has an area of 708.2 m². The Site is 12.19 m wide and has side boundaries of 60.05 m and 56.39 m respectively. The Site falls by about 20 m from its street frontage to the north-eastern rear boundary. The part of the Site on which the carport is proposed to be erected is filled land supported by a significant crib wall. It has been used for the parking of cars for many years.

3. The Proposed Development will involve the laying of a concrete slab over the filled land which will be suspended over four concrete pylons with a roof above supported by steel columns. Crash barriers will be provided on each side and the rear.

4. The DA was made to the Council on 23 May 2022 (Council reference DA22/0445). It was publicly notified in accordance with the Council’s Community Participation Plan between 5 and 29 August 2022. No submissions were received.

5. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 25 August 2022 the Applicant appealed to the Court pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

7. The Court arranged a conciliation conference under ss 34 and 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at the Site on 13 December 2022 and then by Microsoft Teams later on the same day. I presided over the conciliation conference.

8. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the development application in an amended form subject to conditions. The amendments involve increasing the car parking area to have minimum internal dimensions of 5.4 m wide and 5.4 m long and replacing the proposed safety barrier with an open form structure with vertical balusters or mesh infill panels within a structure that complies with AS1170.1. The DA was amended by the Applicant with the agreement of the Council on 13 December 2022 in accordance with cl 37 of the Environmental and Planning and Assessment Regulation 2021 (EPA Regulation).

9. The final signed agreement was lodged with the Court on 13 December 2022 and is supported by a Statement of Reasons/Jurisdictional Statement prepared by the Council on 13 December 2022. Under 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.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

The statutory conditions on the grant of development consent

The conditions in the EPA Act and Regulation

11. The appeal was brought pursuant to s 8.7 of the EPA Act, and was made within the time required by s 8.10, of the EPA Act.

12. Clause 23(1)(b) of the EPA Regulation provides that a development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land. The DA was made by the Applicant who is one of the owners of the Site with the consent of the other owner, Annette Drummond.

The conditions in the LEP

13. The Land is within Zone C3 – Environmental Management under the Sutherland Shire Local Environmental Plan 2015 (LEP). The Proposed Development is permitted with development consent on land within that zone.

14. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R2 – Low Density Residential 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.

15. In determining the DA, I have had regard to those objectives.

16. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (cl 4.4). 

17. The Site is Class 5 land for the purposes of cl 6.1 (acid sulfate soils) of the LEP. The Council has indicated, and I accept, that the Proposed Development does not involve the carrying out of works to which cl 6.1(3) applies and there is therefore no need for the preparation of an acid sulfate soils management plan.

18. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I agree with the Council that only minor earthworks are proposed by the DA and that conditions have been included in the proposed conditions of consent to alleviate any associated impacts.

19. Clause 6.4(3) of the LEP applies to the Site and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—

1. 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

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

3. 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.

20. The DA proposes to discharge stormwater from the carport to the existing stormwater system and I am satisfied that the matters set out in cl 6.4(3) of the LEP are satisfactorily addressed by the DA.

21. The Site is identified by the LEP as environmentally sensitive land and cll 6.5, 6.7 and 6.8 each provide that development consent must not be granted unless the consent authority is satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact. The Proposed Development is to be carried out on land that is adjacent to the street and I accept the Council’s position that the Proposed Development will therefore not result in any significant adverse impact.

22. Clause 6.14 of the LEP requires a minimum percentage of the site area to consist of landscaped areas and I accept the Council’s submission that the Proposed Development complies with this requirement.

23. Clauses 6.16 and 6.17 of the LEP each require the consent authority to consider the quality of urban design exhibited by the Proposed Development and I have taken this into account in determining the DA. In this regard I accept the Council’s position that the urban design of the carport is acceptable having regard to the revised balustrade design contemplated by the agreed conditions of development consent.

The conditions in State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP)

24. The Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

25. The Proposed Development does not involve a change of use and has been used for residential purposes for many years. I am satisfied that a preliminary site investigation is therefore not required and that the Site is suitable for its proposed continued use for residential purposes.

Conclusion

26. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

27. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

28. The Court notes that:

1. The Applicant has amended the DA with the agreement of the Council pursuant to cl 37 of the EPA Regulation.

2. The Applicant filed the amended DA with the Court on 28 November 2022.

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application 22/0445, as amended, for the construction of a detached carport for 2 cars for an existing dwelling on the land described as Lot 16 DP 12294 known as 31 Pacific Crescent, Maianbar, subject to the conditions in Annexure A. 

………………………..

A Bradbury

Acting Commissioner of the Court

Annexure A (161096, pdf)

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Decision last updated: 20 December 2022