Kouklidis v Bayside Council

[2020] NSWLEC 1413

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kouklidis v Bayside Council [2020] NSWLEC 1413

Hearing dates:

Conciliation conference on 11 and 12 August 2020

Date of orders:

08 September 2020

Decision date:

08 September 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is given leave to amend the Development Application DA 2019/103 to rely on the amended architectural plans and documents referred to in the Table at condition 2 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA 2019/103 subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – residential development – demolition – strata subdivision – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Local Land Services Act 2013

Rockdale Local Environmental Plan 2011

State Environmental Planning Policy 55— Remediation of Land

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Strata Schemes Development Act 2015

Texts Cited:

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Paul Kouklidis (First Applicant)
Melissa Kouklidis (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
C Ireland (Applicants)
J Cole (Solicitor) (Respondent)

Solicitors:
Koutzoumis Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/395206

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 residential development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of a development application being Development Application No. DA-2019/103 seeking approval for the demolition of all existing structures on the site including single storey detached dwelling house, street boundary fencing and associated outbuildings and construction of two attached dual occupancies (two dwellings) including large basement car parking and Torrens Title subdivision (Proposed Development) at 51 Laycock Street, Bexley being Lot 26 Section D in Deposited Plan 3393 (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 has been held on 11 and 12 August 2020. I have presided over the conciliation conference.

3. Following 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 granting leave to rely on amended plans and documents, upholding the appeal and granting development consent to the development application subject to conditions. The amendments to the development application relate to the physical separation of the two dwellings, design changes to ensure one dwelling has a clear frontage to Laycock Street and the other with a clear frontage to Park Street, strata subdivision rather than Torren Title subdivision, deletion of a swimming pool and various other consequential amendments to the driveway, building materials, fencing and the alfresco dining area resulting in the Proposed Development being more in character with the area.

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. The parties’ decision involves the Court exercising the function of determining the proceedings under s 4.16(1) of the EPA Act.

5. 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 explained how the jurisdictional prerequisites have been satisfied. 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 formed this state of satisfaction for the following reasons:

1. Clause 7 of the State Environmental Planning Policy No 55— Remediation of Land (SEPP 55) requires the Court as consent authority to not grant consent to the carrying out of any development on land unless it has considered whether the land is contaminated. I have considered whether the Site is contaminated by a review of the Joint Expert Report filed on 3 August 2020 and note their agreement at par 1.3 on the facts as set out in the Amended Statement of Facts and Contentions (SOFAC) filed 10 July 2020. In that regard, I find that the Site contains a residential dwelling as described in par 2.7 of the SOFAC consistent with my observations of existing structures during the site visit on 11 August 2020 and the description of the Proposed Development seeking approval to demolish inter alia an existing dwelling. I also undertook a review of the Statement of Environmental Effects (SEE) of March 2019 prepared by Haskew de Chalain Planning which at page 17 addresses the requirement of cl 7 of SEPP 55. During the conciliation conference Mr de Chalain corrected an error in his SEE and confirmed that:

“Council records indicate that the subject site has been used for residential purposes for a significant period of time with no prior land uses. In this regard, it is considered that the site poses no risk of contamination and therefore, no further consideration is required under Clause 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for the residential land use.”

6. I am satisfied that BASIX certificates have been provided to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000 and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. BASIX certificates 990986S_04 and 990992S_03 are referenced in the Conditions of Consent.

7. In relation to the Rockdale Local Environmental Plan 2011 (RLEP 2011):

1. the site is zoned R2 Low Density Residential. Dual occupancies are permissible within this zone and the Proposed Development is considered to be generally in accordance with the requirements of the objectives of the zone. Demolition work may be carried out only with development consent pursuant to cl 2.7 of the RLEP 2011 and subdivision is permissible with consent pursuant to cl 2.6 of the RLEP 2011.

2. The Proposed Development does not contravene any development standard in the RLEP 2011. I am satisfied that the Proposed Development is:

1. Below the maximum height set out in the Height of Buildings Map referred to in cl 4.3 of the RLEP 2011 as depicted in the amended architectural drawings DA8.00 and DA8.01.

2. Compliant with the maximum Floor Space Ratio (FSR) because the Drawing DA3.00 specifies the proposed FSR to be 0.4994:1 being below the maximum of 0.5:1.

3. Generally consistent with the objectives and controls of the Rockdale Development Control Plan 2011 set out in Part 4 General Principles for Development and Part 5.1 Building Types – Low and Medium Density Residential.

8. Notification requirements under the EPA Act have been satisfied and no submissions were received in relation to the original plans. The Respondent submits that it does not consider it necessary to notify the amended plans for the reason that the amendments are an improvement to the original development proposal and I accept and agree with this position because there were no original objectors and the improvements to the design would not cause any new concern.

9. 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.

10. The Court orders:

1. The Applicant is given leave to amend the Development Application DA 2019/103 to rely on the amended architectural plans and documents referred to in the Table at condition 2 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA 2019/103 subject to the conditions of consent at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (278101, pdf)

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Decision last updated: 08 September 2020