Jolley v Lane Cove Municipal Council

[2022] NSWLEC 1275

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jolley v Lane Cove Municipal Council [2022] NSWLEC 1275

Hearing dates:

Conciliation conference on 26 May 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA6/2022 for demolition of the existing dwelling house and construction of a two-storey residential dwelling and swimming pool at 19 George Street, Greenwich is determined by the grant of consent subject to the conditions set out in annexure “A”.

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

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

Lane Cove Local Environmental Plan 2009 cll 5.10, 6.1A

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Lisa Jolley (Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
JP Merlino (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/65807

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling at 19 George Street, Greenwich, and the construction of a two-storey dwelling and swimming pool. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 26 May 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on the same day, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council on 25 and 26 May 2022, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments in the amended development application include increases to the setbacks to the western boundary, where the heritage item known as Greenwich House is located.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional matters about which the consent authority must be satisfied.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Lane Cove Local Environmental Plan 2009 (LCLEP).

• The proposed development complies with the applicable development standards that arise pursuant to the LCLEP.

• Based on the heritage impact statement of John Oultram of November 2021, I have considered the effect of the proposal on the heritage significance of the heritage item, consistent with cl 5.10 of the LCLEP.

• I have considered the matters set out in cl 6.1A(3) of the LCLEP, some of which are also to be addressed by conditions of consent, such as conditions 35, 37, and 55.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purpose of a residential dwelling, it is unlikely to be contaminated.

• The notification requirements under the EPA Act have been satisfied, and I have considered the submissions made in response to the notification.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court Notes that:

1. Lane Cove Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA6/2022, in accordance with the below documentation:

Drawing:	Prepared by:	Dated:
01Rev Q CoverSheet	Lippmann	21/04/22
02Rev QSite Analysis Plan	Lippmann	21/04/22
03 Rev Q Demolition Plan Excavation Fill Plan	Lippmann	21/04/22
04Rev Q Roof Plan	Lippmann	21/04/22
05Rev Q Ground Floor	Lippmann	21/04/22
06Rev Q Level 01	Lippmann	21/04/22
07Rev Q North and South Elevation	Lippmann	21/04/22
08Rev Q East and West Elevation	Lippmann	21/04/22
09Rev Q Section	Lippmann	21/04/22
15 Rev R Tree Removal Plan	Lippmann	16/05/22
BASIX Certificate	Six B Design	23/05/22
101-102 Stormwater Plans	Civil & Stormwater Engineering Services Pty Ltd	08/04/22
Arboricultural Impact Report	Landscape Matrix Pty Ltd	12/04/22

2. The parties lodged the amended application on the NSW Planning Portal on 25-26 May 2022.

3. The Applicant filed the amended application with the Court on 26 May 2022.

9. The Court orders that:

1. The appeal is upheld.

2. Development application DA6/2022 for demolition of the existing dwelling house and construction of a two-storey residential dwelling and swimming pool at 19 George Street, Greenwich is determined by the grant of consent subject to the conditions set out in annexure “A”.

……………………….

J Gray

Commissioner of the Court

Annexure A (232845, pdf)

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Decision last updated: 01 June 2022