Kolenda v Northern Beaches Council

[2021] NSWLEC 1052

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kolenda v Northern Beaches Council [2021] NSWLEC 1052

Hearing dates:

Conciliation conference on 21-22 January 2021

Date of orders:

01 February 2021

Decision date:

01 February 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1)   The Applicant’s written request pursuant to clause 4.6 of Manly Local Environmental Plan 2013 (MLEP) seeking to justify contravention of the height of buildings standard under clause 4.3 of MLEP, has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of MLEP.

(2) The Applicant’s written request pursuant to clause 4.6 of MLEP seeking to justify contravention of the Floor Space Ratio development standard under clause 4.4 of MLEP, has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of MLEP.

(3) The appeal is upheld.

(4) Development consent is granted to development application DA2019/1265 for alterations and additions to an existing dwelling at 15 Monash Crescent, Clontarf subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – breach of height limit – breach of Floor Space control – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Manly Local Environmental Plan 2013

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Milena Kolenda (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/187181

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ms Milena Kolenda (the Applicant) against the Respondent’s actual refusal of development application DA/2019/1265. The development application seeks consent for alterations and additions to a dwelling house and garage at 15 Monash Crescent, Clontarf.

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

3. The appeal was listed for conciliation on 21 January 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 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 on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 January 2021.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), consent has been provided by the owners of the land the subject of the Development Application.

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the site. Clause 7(1) of SEPP 55 requires the consent authority to consider whether the site is contaminated. The Respondent notes that its records indicate that the subject land has been used for residential purposes for a significant period of time with no prior land uses. I accept the agreed submission of the parties that the site poses a negligible risk of contamination and that the land is suitable for the proposed use.

3. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the subject site. The site is within the Foreshores and Waterways Area but is unzoned under the instrument. In determining the development application, I have taken into consideration the matters in Division 2 of the instrument as are relevant to the development application.

5. Pursuant to cl 15 of State Environmental Planning Policy (Coastal Management) 2018, I am satisfied that the Applicant’s assessment is sufficient to demonstrate that the development proposed by the application is not likely to cause increased risk of coastal hazards on subject site or other land.

6. Pursuant to Manly Local Environmental Plan 2013 (MLEP) the site is zoned E3 Environmental Management. The development proposed (Dwelling Houses) is permissible in the zone. In determining the development application, I have had regard to the objectives of the zone.

7. The development application seeks a variation to the maximum height control standard of 8.5m for a new lift structure providing access to the existing roof. The maximum height sought by the development application is 9.24m. The Applicant has filed a written request pursuant to cl 4.6 of MLEP prepared by Vaughan Milligan Development Consulting Pty Ltd. This request accords with the amended plans and seeks a variation to the height development standard. I have reviewed the request and, in accordance with cl 4.6 of MLEP, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of MLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of MLEP).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of MLEP are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the E3 Environmental Management zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of MLEP are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the MLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

8. Further, the development application seeks a variation to the maximum floor space ratio (FSR) control standard of 132.28m² or 0.625:1. The maximum FSR standard applicable to the site is 0.4:1. I note the existing dwelling has an FSR of 0.599:1 and as such the development seeks an addition 14m². The Applicant has filed a written request pursuant to cl 4.6 of MLEP prepared by Vaughan Milligan Development Consulting Pty Ltd. This request accords with the amended plans and seeks a variation to the height development standard. I have reviewed the request and, in accordance with cl 4.6 of MLEP, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of MLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of MLEP).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of MLEP are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the E3 Environmental Management zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of MLEP are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the MLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

9. The subject site is within the foreshore protection area as mapped on the Foreshore Scenic Protection Area Map of MLEP. In granting consent, I am satisfied that the matters listed at cl 6.10(3) of MLEP are met by the development application.

10. In granting consent to the application, I have given consideration to the matters at cl 6.13(4) and find that the development exhibits design excellence as defined by the instrument.

11. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant’s written request pursuant to clause 4.6 of Manly Local Environmental Plan 2013 (MLEP) seeking to justify contravention of the height of buildings standard under clause 4.3 of MLEP, has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of MLEP.

2. The Applicant’s written request pursuant to clause 4.6 of MLEP seeking to justify contravention of the Floor Space Ratio development standard under clause 4.4 of MLEP, has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of MLEP.

3. The appeal is upheld.

4. Development consent is granted to development application DA2019/1265 for alterations and additions to an existing dwelling at 15 Monash Crescent, Clontarf subject to the conditions in Annexure ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (413482, pdf)

**********

Decision last updated: 01 February 2021