King v Northern Beaches Council

[2024] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:

King v Northern Beaches Council [2024] NSWLEC 1260

Hearing dates:

Conciliation Conference on 16 April 2024

Date of orders:

17 May 2024

Decision date:

17 May 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA2023/0678 for the construction of a garage and boatshed with a studio above at 5A Beach Road, Palm Beach NSW 2108, known as Lot 12 in DP 1275411, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – construction garage and boatshed – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Pittwater Local Environmental Plan 2014, cl 2.3

Texts Cited:

Northern Beaches Community Participation Plan

Category:

Principal judgment

Parties:

Vivian King (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
R White (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/275071

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2023/0678 (the Development Application) for the construction of a garage and boatshed with a studio above at 5A Beach Road, Palm Beach NSW 2108, known as Lot 12 DP1275411 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at Court as there were no objectors and the Court accepted the parties request that it was not necessary to go on Site.

3. At the conciliation conference, the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the construction of the boatshed and garage with studio above at the Site subject to conditions set out in Annexure A to this judgment.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

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

Background Facts

6. The Site is zoned C4 Environmental Living pursuant to Pittwater Local Environmental Plan 2014 (PLEP 2014) and is currently occupied by a four-level dwelling located on the western portion of the land.

7. The Development is proposed on a portion of the Site (dimensions - 9.69m by 13.41m – 129.94m²) which was purchased from the Palm Beach Golf Club. This portion of the Site is accessed from Beach Road, Palm Beach over the Golf Club’s land at 2 Beach Road Palm Beach (‘Golf Club’s Land), with the benefit of a Right of Access (‘ROA’) that is 3.5m by 9.6m.

8. Between 23 June and 7 July 2023, the Development Application was notified by the Respondent in accordance with the Northern Beaches Community Participation Plan (Community Participation Plan). No submissions were made in response to the notification.

9. On 29 August 2023, the Applicant filed Class 1 proceedings in the Land and Environment Court appealing the Respondent’s deemed refusal of the Development Application.

10. On 22 September 2023 the Respondent filed its Statement of Facts and Contentions (‘SOFAC’) and on 7 November 2023 the Applicant filed its SOFAC in Reply.

11. Subsequently the Applicant prepared a suite of amended plans and materials for the purpose of the section 34AA conciliation conference and hearing which included:

• Owner’s Consent

• Amended Swept Diagrams

• Amended Architectural Plans

• Schedule of Amendments

• Letter of Support from Palm Beach Golf Club.

12. Specifically, the amendments are:

1. Architectural

1. Deletion of the proposed new 1.8m fence on the western boundary of the Site adjoining 1182 Barrenjoey Road Palm Beach;

2. Metal Privacy Screen and awning added to the west side of the first floor balcony;

3. Planter boxes + screening plants added along the full length of the first floor, west elevation;

4. First floor room name clarified to Studio/Home Office/Rumpus;

5. Shadow diagrams indicating shadows on 21 June cast on adjoining properties;

6. Bollard (pop-up) added between the proposed Development and the disabled car space on the Golf Club land;

7. The plans were amended to more accurately reflect the existing shape of the garage roof at 1182 Barrenjoey Road; and

8. New drawing DA403A provided – providing a perspective of the proposed Development from the Golf Club Carpark.

2. Supporting Documents:

1. Owner’s consent letter from Louise Manning (1180 Barrenjoey Road, Palm Beach);

2. Amended swept diagrams prepared by CJP Consulting Engineers; and

3. Letter of Support for the Development Application prepared by Palm Beach Golf Club.

13. Leave to rely on the Amended Development Application was granted by the Court on 13 March 2024.

14. In accordance with the Community Consultation Plan, the Amended Development Application was not renotified as the Respondent formed the opinion that the amendments would result in a lesser or reduction of environmental impacts. Renotification in these circumstances is not required under the Respondent’s Community Participation Plan.

15. The amended plans and additional information comprising the Amended Development Application have resolved all of the Council’s contentions raised in the proceedings and prompted the parties to settle the matter by the s 34 Agreement.

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

Owners Consent

17. The issue of ‘Owner’s Consent’ to all land the subject of the DA was initially raised by the Respondent and has now been resolved as set out in the parties Statement. The Court accepts the steps that have been taken to resolve this jurisdictional issue and is satisfied this potential jurisdictional impediment is resolved.

State Environmental Planning Instruments

18. I have considered the jurisdictional issues raised by the following State Environmental Planning Instruments which apply to the Site as set out in the Statement and am satisfied that no jurisdictional impediments arise preventing the Court from allowing the appeal and granting consent to the Development Application:

1. State Environmental Planning Policy (Resilience and Hazards) 2021

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

3. State Environmental Planning Policy (Transport and Infrastructure) 2021

Pittwater Local Environmental Plan 2014 (PLEP)

19. The Site is zoned C4 Environmental Living pursuant to the PLEP. The Development is permitted with consent within this zone.

20. The parties Statement sets out each of the relevant objectives of the C4 zone. I accept the parties analysis and agreement that the proposal before the Court is consistent with the objectives of the C4 zone pursuant to cl 2.3(2) of the PLEP.

21. I am satisfied that as set out in the Statement the proposed Development does not give rise to any other non-compliances of relevant clauses of the PLEP such as to give rise to a jurisdictional error preventing the making of an order for the grant of development consent.

22. I note the parties, to the extent relevant for jurisdictional purposes, have also considered and agreed that the Development Application as amended sits comfortably with relevant controls of the PittwaterDevelopment Control Plan (PDCP).

Conclusion

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

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

25. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No. DA2023/0678 for the construction of a garage and boatshed with a studio above at 5A Beach Road, Palm Beach NSW 2108, known as Lot 12 in DP 1275411, subject to conditions in Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 December 2024