Koczka v Sutherland Shire Council

[2024] NSWLEC 1646

Land and Environment Court

New South Wales

Medium Neutral Citation:

Koczka v Sutherland Shire Council [2024] NSWLEC 1646

Hearing dates:

Conciliation Conference 2 October 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld; and

(2) Development consent is granted to Development Application No.23/0401 for the construction of a swimming pool, associated fencing and paving at Lot 25 in Deposited Plan 270889 (No. 28) Anderson Place, Menai, subject to the conditions of consent annexed hereto and marked "Annexure A".

Catchwords:

DEVELOPMENT APPEAL – residential development swimming pool – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulations 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.11, 6.12, 6.13, 6.14, 6.60

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

Sutherland Shire Local Environmental Plan 2015, cll 6.4, 6.5, 6.7, 6.14

Texts Cited:

Planning for Bushfire Protection 2019

Category:

Principal judgment

Parties:

Andrew Koczka (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Chrissochoides (Solicitor)(Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Sutherland Shire Council (Applicant)
Piper Alderman (Respondent)

File Number(s):

2024/189951

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No.DA23/0401 for the construction of a swimming pool, associated fencing and paving (the Proposed Development) at 28 Anderson Place, Menai legally described as Lot 25 in DP 270889 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 October 2024. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement. I now set out how I have achieved the requisite states of satisfaction below.

7. The Applicant is the registered proprietor of the Site along with Debra Koczka and owners’ consent was lodged with the Development Application and evidence of which is filed with the Class 1 Application at Tab 2.

8. The Site is zoned C4 Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The Proposed Development is wholly within the C4 Zone and there is an existing dwelling house on the Site. A swimming pool ancillary to a dwelling house is permissible with consent under the SSLEP.

9. The Development Application was notified between 29 June 2023 and 14 July 2023. No submissions were received.

10. In accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Court, as consent authority has considered whether the Site is contaminated. The Court is satisfied that the land is suitable for the proposed use because the Site is currently used for residential purposes and prior to the existing dwelling being erected the Site was bushland. The parties provided a copy of the Council’s Planning Assessment Report of the Proposed Development which confirms that the existing dwelling house was constructed in approximately 2018 and that a review of Council’s contaminated land register indicates that the Land is not potentially contaminated. I am satisfied that the Site remains suitable for a swimming pool ancillary to a dwelling house and that consideration of a report specifying the findings of a preliminary investigation is not required.

11. The Site is within the Georges River Catchment area and the terms of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) provide jurisdictional prerequisites to the exercise of the Courts function to grant development consent.

12. I am satisfied, in relation to water quality and quantity pursuant to s 6.6(2) of the Biodiversity & Conservation SEPP, that the development ensures the effect on the quality of water entering a natural waterbody will be as close as possible to neutral, and the impact on water flow in a natural waterbody will be limited because the parties agree as follows:

1. subject to the installation and maintenance of sediment controls during construction, the development will have a neutral effect on the quality of water entering a waterway.

2. the development will not have an adverse impact on water flow in a natural waterbody.

3. the development may increase the amount of stormwater run-off from the site, however any excess overflow will be discharged to the existing sewerage system.

4. the proposed swimming pool will be connected to the existing sewerage and stormwater system.

5. the development will have no impact on the level and quality of the water table.

6. cumulative environmental impacts from the development on the regulated catchment are negligible.

7. the development makes adequate provision to protect the quality and quantity of groundwater.

13. I am satisfied, in relation to aquatic ecology pursuant to s 6.7(2) of the Biodiversity and Conservation SEPP that:

1. any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development,

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

3. no approval or permit is required under the Water Management Act 2000 or the Fisheries Management Act 1994,

4. the land does not abut a natural waterbody,

5. there will be no adverse impact on wetlands.

14. I have formed this state of satisfaction because the parties explain that the parties agree as follows:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor;

2. the development does not involve the clearing of riparian vegetation;

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway;

4. the development will not have an adverse impact on wetlands;

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures;

6. the development does not adjoin a natural waterbody.

15. In relation to flooding, pursuant to s 6.8 of the Biodiversity and Conservation SEPP, the Site is not flood liable and the Proposed Development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems.

16. Regarding recreation and public access to and from natural waterbodies for recreational purposes, pursuant to s 6.9 of the Biodiversity and Conservation SEPP, parties agree that the Proposed Development will have no impact on recreational land uses in the Georges River Catchment or on public access to and around foreshores.

17. The Site is not within:

1. 100m of a natural waterbody (s 6.11, Biodiversity and Conservation SEPP);

2. a riverine scenic area (s 6.12, Biodiversity and Conservation SEPP),

3. a Hawkesbury-Nepean conservation area sub-catchment (s 6.13, Biodiversity and Conservation SEPP) or the Sydney Drinking Water Catchment (s 6.60. Biodiversity and Conservation SEPP) and does not involve temporary use of land (s 6.14, Biodiversity and Conservation SEPP).

18. Further appropriate conditions are agreed to protect water quality during the works, including conditions 7, 10 and 12.

19. The Land is mapped as Bushfire Prone Land pursuant to the and the Applicant relies on the Bushfire Self Assessment Report dated 23 June 2023 Issue A filed with the Class 1 Application at Tab 9. The Proposed Development must satisfy the requirements of Part 7 of Planning for Bushfire Protection 2019 – Residential Infill Development, which includes alterations and additions to a dwelling. The Bushfire Sels Assessment Report has determined, in accordance with AS3959:2018, that the proposed swimming pool in the front setback can achieve a BAL LOW and is therefore acceptable.

20. The Proposed Development does not propose any changes to the existing stormwater management on the Land as a result of the proposed new swimming pool. No surface stormwater or water run-off will be directed onto adjoining land and any excess overflow will be discharged to the existing sewerage system. As such, the Court is satisfied that the Proposed Development complies with the stormwater management requirements of cl 6.4 of the SSLEP.

21. The Site is identified as “Environmentally Sensitive Land” on the Terrestrial Biodiversity Map pursuant to cl 6.5 of the SSLEP. The parties agree that in the Proposed Development there is no proposal to remove any vegetation on the Site and is unlikely to have an adverse impact on the flora and fauna and their habitats. Given the Land is already used for residential purposes, the Proposed Development is unlikely to fragment or diminish the biodiversity structure, function and connectivity of the land. Suitable replacement landscaping is proposed to ensure that native flora is planted and ecological processes and values retained. For these reasons, the Court is satisfied that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact (cl 6.5(4), SSLEP).

22. The subject land is identified as “Environmentally Sensitive Land” on the Riparian Land and Watercourses Map pursuant to cl 6.7 of the SSLEP. The Proposed Development does not propose any works near Georges River or any watercourses. Appropriate sediment control and erosion measures will be in place during construction. The Court is therefore satisfied that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact on Georges River or any surrounding watercourses or riparian area (cl 6.7 of the SSLEP).

23. The Site is subject to a minimum landscaped area development standard of 40% pursuant to cl 6.14 of the SSLEP. During the course of joint conferencing of the town planning experts, the Applicant amended the proposal by shortening the swimming pool, relocating the waste and recycling bin location and removing paving slabs around the entry of the pool and replacing with landscaping. These amendments are reflected in the Applicant’s amended architectural plans and landscape plan and provides a compliant landscaped area of 44.3% or 342.33m2 as shown on the Site Plan Drawing No 101 dated 17 September 2024.

24. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I have set out my reasons and I have adopted the reasons given by the parties as set out in this judgment.

25. 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.

Notations:

26. The Court notes:

1. Sutherland Shire Council as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. 23/0401 to rely upon the amended plans and documents as follows:

Plan Number	Reference	Prepared by	Date
Sheet 1 - Issue C	Landscape Plan	Paul Scrivener	30.8.2024
1-101	Site Plan	Belle Architectural Designs	17.9.2024
2-102	Site Analysis Plan	Belle Architectural Designs	17.9.2024
3-103	Floor Plan	Belle Architectural Plans	17.9.2024
4-104	Construction Management Plan	Belle Architectural Plans	17.9.2024
5-105	Section A-A & Section B-B	Belle Architectural Plans	17.9.2024

2. The Respondent is now satisfied that the contentions raised in the proceedings have been addressed by the amended plans and documents in the Amended Application.

Orders:

27. The Court orders:

1. The appeal is upheld; and

2. Development consent is granted to Development Application No.23/0401 for the construction of a swimming pool, associated fencing and paving at Lot 25 in Deposited Plan 270889 (No. 28) Anderson Place, Menai, subject to the conditions of consent annexed hereto and marked "Annexure A".

E Espinosa

Commissioner of the Court 

Annexure A 

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Decision last updated: 16 October 2024