Joyce v Northern Beaches Council

Case •

[2022] NSWLEC 1445

•

24 August 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Joyce v Northern Beaches Council [2022] NSWLEC 1445
Hearing dates: Conciliation conference on 4-5 August 2022
Date of orders: 24 August 2022
Decision date: 24 August 2022
Jurisdiction:Class 1
Before: Adam AC
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. DA2021/1408 for the demolition works and construction of a dwelling house including a boatshed at 16 Addison Road, Manly NSW 2095, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – dwelling house- conciliation conference – agreement between the parties – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.7, 7.16

Biodiversity Conservation Regulation 2017, cl 3.3, Pt 3 Div 3.2

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

Environmental Planning and Assessment Regulation 2000, cl 55

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

Manly Local Environmental Plan 2013, cll 4.3, 4.4, 6.3, 6.5, 6.9, 6.10

Threatened Species Conservation Act 1995 (repealed)

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, s 10.14

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.12, 2.13, Ch 4, s 4.6

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

Cases Cited:

Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Manly Development Control Plan 2013

Category:Principal judgment
Parties: Patrick Adrian Joyce (Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
S Vatala (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Dentons Australia (Applicant)
Northern Beaches Council (Respondent)
File Number(s): 2022/107881

Judgment

  1. The applicant, Mr Joyce, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) appeals against the refusal of development application no. 2021/1408 (DA) by the Northern Beaches Local Planning Panel on 16 March 2022.

  2. The DA was for demolition of existing structures including a dwelling house, site preparation including excavation, construction of a three-storey dwelling house, a boatshed and associated landscaping at 16 Addison Road, Manly (the site) and is legally known as Lot 2 DP 325330. The DA was lodged with the Council on 3 August 2021. The DA was advertised and notified in accordance with the Northern Beaches Council Community Participation Plan between 31 August and 3 October 2021. In response, 13 submissions, raising a large number of issues, were received.

  3. On 24 November 2021, the Council wrote to the applicant raising a number of concerns. In response, the applicant lodged an amended proposal and additional information on 30 December 2021, in order to address the Council’s concerns.

  4. Given the number of submissions received by Council to its original notification, the DA was referred to the Northern Beaches Local Planning Panel, which resulted in refusal of the DA.

  5. The parties participated in a without prejudice meeting on 30 May 2022 and continued discussion on a without prejudice basis following that meeting. In response to matters raised by the Council during the discussions, the applicant provided to the Council amended landscape plans on a without prejudice basis on 27 June 2022 and amended architectural plans on 8 July 2022. The Council informally notified the amended architectural plans to local residents for seven days from 8 July 2022. The amended plans were the plans which were before the Court.

  6. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

  7. The conciliation conference commenced on site. Present were the legal representatives of the parties and the parties’ planning experts: Mr Nash for the applicant and Mr Duncan for the Council.

  8. The site is a battle-axe allotment off Addison Road and the lot has a total area of 543.8m2. The neighbourhood is characterised by dense development of dwelling houses and residential flat buildings. To the south, 16 Addison Road abuts the foreshore of Little Manly Cove.

  9. Prior to the commencement of the conciliation conference on site, the Court heard from two objectors: Mr Jacobs speaking on behalf of himself and Ms Matta, who reside in one of the units in 22-26 Addison Road, and Mr Robb of Evolution Planning who had been engaged to represent Ms Lavers of 14 Addison Road. Mr Jacobs had a number of general issues he wished to raise, but in particular he was concerned about possible impacts on the view he enjoys from his unit towards the Quarantine Station. On behalf of Ms Lavers, Mr Robb raised her concerns about several issues but in particular the impact of construction traffic on the shared driveway which provided access both to her residence and 16 Addison Road, and the potential impact of the proposed new dwelling on light access to her property and privacy issues.

  10. Ms Lavers was not able to attend in person, although she spoke briefly to explain that she had a pre-existing appointment which precluded her attendance. However, she arranged for Mr Robb to provide access to her dwelling at 14 Addison Road from which observations were made, from above, of the foreshore and the top of the ‘cliff’ line and the site of the proposed boatshed.

  11. Access was made down the side of the existing residence on 16 Addison Road to permit closer observation of the area below the proposed dwelling and of the boatshed site and for views of the adjacent existing dwellings and the relationships between dwellings to each other and to the shoreline. The site of an approved (but not yet constructed) swimming pool for 16 Addison Road and the spiral steps down to it were also seen. The swimming pool and the immediately adjacent foreshore are not part of the allotment of 16 Addison Road but will be held under a lease.

  12. Following the site inspection, the conciliation conference was adjourned to the Council Chambers at Dee Why where without prejudice discussions between the parties took place. Mr Duncan was able to clarify a number of matters with Council’s biodiversity officer, who replied to questions on speaker so as to be audible to all at the meeting. The parties reached an in-principle agreement, under s 34(3) of the LEC Act as to the terms of a decision acceptable to the parties. The s 34AA conciliation conference was adjourned to 5 August 2022 to enable finalisation of the agreement and the conditions. The agreement involved amended plans and lodging of the amended plans on the NSW planning portal occurred on 4 August 2022 as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

  13. The decision reached by the parties is for the granting of development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. The signed agreement is supported by an Agreed note on Jurisdiction.

  14. As the presiding Commissioner, I must be satisfied that the development consent is a decision that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

  15. I have considered the Agreed note on Jurisdiction, the Class 1 application and its attachments and the documents which form part of Condition 1. I have had regard to the submissions of the objectors both those who presented orally and those made by the other objectors in writing.

  16. The land is zoned C4 Environmental Living pursuant to the Manly Local Environmental Plan 2013 (Manly LEP) and the proposed development is permissible with consent.

  17. The Council’s Statement of Facts and Contentions (SOFAC) was filed in Court on 20 May 2022 and raised five contentions which in summary (from the Agreed note on Jurisdiction) are:

  • Contention 1 – View loss: Inconsistencies with clause 3.4.3 of the Manly Development Control Plan 2013 (Manly DCP) in relation to view loss;

  • Contention 2 – Side setbacks: Inconsistencies with clause 4.1.4 of the Manly DCP in relation to side setbacks;

  • Contention 3 – Wall heights and number of storeys: Inconsistencies with clause 4.1.2 of the Manly DCP in relation to wall height and the number of storeys;

  • Contention 4: Public Interest; and

  • Contention 5: Landscaping and Heritage: conditions of consent should be imposed to minimise the impacts of the proposed development on the Sydney Harbour foreshore.

  1. None of the Council's contentions raised jurisdictional matters.

  2. The Agreed note on Jurisdiction discusses the following points:

Development standards

  1. The DA is compliant with the development standards in the Manly LEP relating to maximum building height, which for the site is limited to 8.5m (cl 4.3(2)) and floor space ratio which for the site is limited to 0.6:1 (cl 4.4)).

Stormwater management

  1. Stormwater is to be disposed of in accordance with the Stormwater Management Plan submitted with the DA dated 1 November 2021 and the covering letter from Taylor Consulting. These documents demonstrate that the matters in cl 6.3(2) of the Manly LEP are satisfied. The conditions of consent include conditions regulating stormwater management (Conditions 10, 11, 13, 17, 25 and 45).

Earthworks and Landslip risk

  1. Earthworks are proposed for footings and to provide level floor platforms. The reasons set out in par 6.7.2 of the Statement of Environmental Effects (SEE) prepared by Symons Goodyer dated August 2021 and the Geotechnical Assessment Report prepared by JK Geotechnics dated 16 April 2021 explain how the proposed works will satisfy the matter in 6.7.2 of the SEE. The recommendations of JK Geotechnics are incorporated into the conditions of consent (Conditions 7, 12, 34, 38, 44 and 49).

Biodiversity

  1. The site is identified as affected on the Terrestrial Biodiversity Map in the Manly LEP. A Biodiversity Development Assessment Report (BDAR) was prepared and submitted with the DA. On the basis of the matters set out in the BDAR, including the mitigation measures contained within it which have been incorporated in the conditions of consent (Conditions 7, 8, 15, 16, 38, 40 and 42), I am satisfied that the matters in cl 6.5(3) and 6.5(4) of the Manly LEP have been satisfactorily addressed.

Foreshore area

  1. The site is located within a Foreshore Scenic Protection Area under the Manly LEP. For the reasons set out in paragraph 6.7.8 of the SEE, I am satisfied that the matters in cl 6.9(3) of the Manly LEP have been appropriately addressed.

  2. Part of the site is within the foreshore area as defined in the Manly LEP. The development complies with cl 6.10 of the Manly LEP which limits the type of development which might be carried out within the foreshore area. The proposed development includes the construction of a boatshed which is permitted in the foreshore area under cl 6.10(2).

SEPP Provisions

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

  1. Clause 4.6 of the Resilience and Hazards SEPP requires the Court to consider whether the site is contaminated. The site has been used for residential purposes for approximately 80 years. The historical uses of the site are not listed in Ch 4 of the Resilience and Hazards SEPP as being activities that may cause contamination. Accordingly, I am satisfied that the site is not likely to be contaminated and is suitable for continued residential use.

  2. The site is within the coastal environment and coastal use areas of the Resilience and Hazards SEPP but as the site is within the foreshore and waterways area under Ch 10 Sydney Harbour Catchment of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) those provisions of the Resilience and Hazards SEPP do not apply.

  3. The site is within the coastal zone. Clause 2.12 of the Resilience and Hazards SEPP provides that development consent cannot be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that or any other land. From the documentation provided, I am satisfied that the development is not likely to cause increased risk of coastal hazards on the site or on any other land.

  4. Section 2.13 of the Resilience and Hazards SEPP provides that a development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the site. There are no coastal management programs applicable to the site.

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

  1. An updated BASIX Certificate dated 1 August 2022 has been provided.

Biodiversity and Conservation SEPP Ch 10 - Sydney Harbour Catchment

  1. Chapter 10 of the Biodiversity and Conservation SEPP applies to the land within the Sydney Harbour Catchment, which includes the site. Section 10.14(2) of the Chapter provides that the consent authority must not grant development consent to any development unless it is satisfied that the development is consistent with the aims of the Chapter and the objectives of the zone in which the development is proposed to be carried out. Section 10.1 of the Chapter provides an extensive list of aims. The Chapter also contains various matters for consideration in the assessment of any development application within the area covered by the Chapter. I am satisfied that nothing in the DA would be contrary to the aims of the Chapter or raise matters which had not been considered in the SEE.

Biodiversity Conservation Act 2016 (BC Act)

  1. Section 7.7 of the BC Act requires a development application for proposed development that is likely to significantly affect threatened species as defined in ss 7.2 and 7.3 of the BC Act should be accompanied by a BDAR. Pursuant to s 7.2(1)(c), an activity or development is likely to significantly affect threatened species if it is carried out in a declared area of outstanding biodiversity value. Part of the site is within the Little Penguin Area of Outstanding Biodiversity Value. (The Manly population of the Little Penguin was listed as an “Endangered Population” under the Threatened Species Conservation Act 1995 (TSCA), and subsequent to its listing an area of “Critical Habitat” was declared. With the advent of the BC Act which replaced the TSCA, Critical Habitat became “Area of Outstanding Biodiversity Value”. Under the Biodiversity Conservation Regulation 2017 (BC Regulation), Pt 3 Div 3.2 established the Little Penguin declared area, the boundaries of which are the same as those of the Critical Habitat and the Area of Outstanding Biodiversity Value. Clause 3.3 of the BC Regulation includes a definition of breeding season for Little Penguin as being from 1 July in any year to 28 February in the following year). Accordingly, the production of a BDAR is triggered. The DA was accompanied by a BDAR.

  2. Section 7.16 of the BC Act provides that a consent authority must refuse consent to a development if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

  3. The BDAR makes a number of recommendations, which if followed, will mean that the development is not likely to have serious and irreversible impacts on biodiversity values.

  4. The mitigation measures proposed in Section 8.4 of the BDAR are required to be implemented under the proposed conditions of consent. I am therefore satisfied that the development is not likely to have serious and irreversible impacts on the biodiversity values (Conditions 7, 8, 16, 38, 40 and 42).

Town planning – joint expert reports

  1. Mr Nash and Mr Duncan participated in a joint conference including a site view on 12 July 2022 and engaged in subsequent email and telephone correspondence. The joint planning experts prepared a Joint Expert Report dated 19 July 2022. In their consideration, they included both the Manly LEP and the Manly DCP. In their Joint Expert Report the planners agreed that on the basis of the amended plans and the recommended conditions of consent which they set out in their report, all of the Council's planning contentions in the proceedings had been satisfied. From their report I am satisfied that the proposed development complies with the setback controls of the Manly DCP and, where relevant, meets the objective of the Manly DCP setback controls and responded to matters raised in public submissions.

  2. On 3 August 2022, Mr Nash and Mr Duncan participated in a further joint conference to consider the submission made by the occupants of 6/22-26 Addison Road and were of the agreed view that the proposal is consistent with the requirements and objectives in clause 3.4.3 of the Manly DCP and the planning principle articulated in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.

  3. I have reached a state of satisfaction that the decision is one that the Court could make in the exercise of its functions. Section 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)).

  4. In making the order 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 any assessment under 4.15 of the EPA Act.

  5. The Court notes that:

  1. Northern Beaches Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA2021/1408 filed with the Court on 14 April 2022 by including and substituting (as the circumstances require) the amended and plans and documents (the amended application) listed below:

Item

Document

Prepared by

Date

1

Amended architectural plans Rev A:

• Cover Sheet, Sheet 1.0,

• Site Plan, Sheet 1.2;

• Boast Shed Plan, Sheet 1.3;

• Lower Floor Plan, Sheet 1.4;

• Ground Floor Plan, Sheet 1.5;

• First Floor Plan, Sheet 1.6;

• Roof Plan, Sheet 1.7;

• Elevations, Sheet 2.1;

• Elevations, Sheet 2.2;

• Sections, Sheet 3.1;

• Sections, Sheet 3.2;

• Setback & Building Height Diagram, Sheet 3.3;

• Shadow Diagram Plans June 21, Sheet 4.1;

• Shadow Diagram 3D June 21 9:00 & 12:00, Sheet 4.2;

• Shadow Diagram 3D June 21 15:00, Sheet 4.3;

• Artist Impression – North, Sheet 6.1;

• Artist Impression – South, Sheet 6.2; and

• Material Palette, Sheet 7.1

Patterson Associates

8 July 2022

2

Amended view impact diagrams:

• Neighbour View Impact No. 18 Addison Road, Sheet 5.1, dated 1 July 2022; and

• Neighbour View Impact No. 12 & 18 Addison Road, Sheet 5.2, dated 1 July 2022; and

• 6/22-26 Addison Road View Comparisons, Sheet 5.3, dated 3 August 2022.

Patterson Associates

Various

3

Amended landscape plans Rev G

• DA Cover Page, Drawing No. LP01-D4819;

• Landscape Plan Ground, Drawing No. LP02-D4819; and

• Landscape Plan Lower Ground, Drawing No. LP03-D4819.

Dangar Barin Smith

27 June 2022

4

BASIX Certificate

Certified Energy

1 August 2022

5

NatHERS Certificate

Certified Energy

1 August 2022

  1. That the Council has lodged the amended application on the NSW planning portal on 4 August 2022.

  2. That the applicant has subsequently filed the amended application with the Court on 5 August 2022.

  1. The Court orders:

  1. The appeal is upheld.

  2. Development consent is granted to development application no. DA2021/1408 for the demolition works and construction of a dwelling house including a boatshed at 16 Addison Road, Manly NSW 2095, subject to the conditions of consent in Annexure A.

………………………

P Adam

Acting Commissioner of the Court

Annexure A (391395, pdf)

**********

Decision last updated: 25 August 2022

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Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

10

Tenacity Consulting v Warringah [2004] NSWLEC 140
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 268