Krivohlavy v Sutherland Shire Council

[2023] NSWLEC 1373

Land and Environment Court

New South Wales

Medium Neutral Citation:

Krivohlavy v Sutherland Shire Council [2023] NSWLEC 1373

Hearing dates:

Conciliation conference 3 July 2023

Date of orders:

17 July 2023

Decision date:

17 July 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA22/1003, seeking consent for alterations and additions to existing double storey heritage listed dwelling and ancillary items at Lot 83 in Deposited Plan 5989, known as 201 Prince Edward Park Road, Woronora NSW 2232, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38, Sch 7

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 2.12, 4.6

Sutherland Shire Local Environmental Plan 2015, cll 2.7, 5.10, 5.21, 6.4, 6.9, 6.16, 6.17

Texts Cited:

Department of Urban Affairs and Planning, “Managing Land Contamination Planning guidelines SEPP 55- Remediation of Land”, 1998

Category:

Principal judgment

Parties:

Lynette Krivohlavy (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/35430

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Lynette Krivohlavy (the Applicant) against the refusal of development application DA22/1003 (the DA). The application, as amended, seeks consent for alterations and additions to an existing double storey heritage listed dwelling and ancillary items at 201 Prince Edward Park Road, Woronora NSW 2232 (Lot 83 in DP 5989).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 3 July 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. 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 form this state of satisfaction on the basis that:

1. The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. The development application was notified to adjoining and nearby owners and occupiers between 17 November to 3 December 2022. No submissions were received.

3. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is located in the Coastal Use Area pursuant to s 2.11 of the RH SEPP. The site is located on the foreshore. I am satisfied that the development as amended, has been designed and sited to avoid or minimise any impact to the following:

1. Overshadowing, wind funnelling and the loss of views from public places to foreshores;

2. The visual amenity and scenic qualities of the coast, including coastal headlands;

3. Aboriginal cultural heritage, practices and places; and

4. Cultural and built environment heritage.

4. Pursuant to s 2.12 of the SEPP RH, development consent must not 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 land or other land under. Due to the location of the Site and the size and design of the development, I accept I can be satisfied that the development is not likely to cause increased risk of coastal hazards on the Site or other land.

5. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. There is no evidence within Council’s records that the land has been used for any purposes listed in table 1 of the Managing Land Contamination Planning guidelines SEPP 55- Remediation of Land. Further, the use of the site is proposed to remain as residential. The Heritage Impact Assessment filed with the development application indicates that historical records indicate the use of the land for European residential purposes since 1912. On the basis of the reports supporting the DA and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

6. The Development Application is for 'BASIX development' as it involves the alteration of a BASIX building where the estimated construction cost is greater than $50,000, see schedule 7 of the EPA Regulation. The Development Application is supported by an updated BASIX Certificate. This certificate confirms that the project passes the BASIX requirements. The BASIX Certificate satisfies the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the Development Application was made.

7. The site is zoned C3 Environmental Management pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015). Development for the purpose of a dwelling house is permitted with consent in the zone. In determining the development application, I have given consideration to the zone objectives of the C3 Environmental Management zone. Further, pursuant to cl 2.7 demolition is permitted with consent.

8. Pursuant to cl 5.10 Heritage Conservation, the subject site is a locally listed heritage. The Heritage Impact Assessment is supplemented by a joint report between the heritage experts in the proceedings. As required by subcl (4) in determining the development application I have considered the effect of the proposed development on the heritage significance of the item.

9. I accept the agreement of the parties that the development application complies with the development standards in LEP 2015.

10. Clause 5.21 Flood Planning applies to the site as it is within a flood planning area under LEP 2015. In determining the development application, I accept and adopt the agreement of the parties that the matters listed at sub cl (2) are satisfied. Further, in determining the application I have given consideration of the matters listed at subcl (3).

11. As the development is proposed residential development, cl 6.4 - Stormwater Management in LEP 2015 applies. I accept the agreement of the parties that pursuant to subcl (3) I can be satisfied that the proposed development:

1. Is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water;

2. is not practicable for on-site water retention for use as an alternative supply to mains water, ground water or river water; and

3. Avoids any significant adverse impacts of stormwater run off on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, the development minimises and mitigates the impact.

12. The site is mapped as being within the foreshore area under cl 6.9 of the LEP 2015. I am satisfied that the proposed development fits within the exception at subcl (2)(a) in that the proposal is for alterations and additions to an existing dwelling house in the foreshore area and the proposal will not extent further forward of the building line than the footprint of the existing residential accommodation.

13. In determining the development application, I have considered the matters listed at subcl (1) of cl 6.16 Urban Design – general and at cl 6.17 Urban Design – residential accommodation.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 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)).

5. 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. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that Sutherland Shire Council, as the relevant consent authority has agreed, under s 38(1) of the EPA Regulation to the Applicant amended development application DA22/1003 in the following respects:

Plan number	Plan Description	Prepared by	Date
00 Rev P10	Cover Sheet & Location Plan	Pti Architecture	16/6/2023
02 Rev P10	Site Plan	Pti Architecture	16/6/2023
04 Rev P10	Cut and Fill Plan	Pti Architecture	16/6/2023
05 Rev P10	Ground floor Demolition Plan	Pti Architecture	16/6/2023
06 Rev P10	Level 1 Demolition Plan	Pti Architecture	16/6/2023
07 Rev P10	Roof Demolition Plan	Pti Architecture	16/6/2023
08 Rev P10	Waste Management Plan - Ground Floor	Pti Architecture	16/6/2023
09 Rev P10	Proposed Landscape Plan	Pti Architecture	16/6/2023
10 Rev P10	Proposed Ground Floor Plan	Pti Architecture	16/6/2023
11 Rev P10	Proposed Level 1 Floor Plan	Pti Architecture	16/6/2023
12 Rev P10	Proposed Roof Plan	Pti Architecture	16/6/2023
13 Rev P10	Sections for proposed entrance structure	Pti Architecture	16/6/2023
14 Rev P10	Section C & Section D	Pti Architecture	16/6/2023
15 Rev P10	South Elevation	Pti Architecture	16/6/2023
16 Rev P10	West Elevation	Pti Architecture	16/6/2023
17 Rev P10	North Elevation	Pti Architecture	16/6/2023
18 Rev P10	East Elevation	Pti Architecture	16/6/2023
19 Rev P10	External Finishes + Colours	Pti Architecture	16/6/2023
20 Rev P10	External Finishes + Colours	Pti Architecture	16/6/2023
21 Rev P10	3D Views page 1	Pti Architecture	16/6/2023
22 Rev P10	3D Views page 2	Pti Architecture	16/6/2023
23 Rev P10	3D Views page 3	Pti Architecture	16/6/2023
LP01	Landscape Plan	Jca Landscape Architects	5/5/2023
SW01	Coversheet & Specifications	GEBA Consulting	5/9/2022
SW02	Erosion & Sediment Control Plan	GEBA Consulting	5/9/2022
SW03	Site Stormwater Plan	GEBA Consulting	5/9/2022

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA22/1003, seeking consent for alterations and additions to existing double storey heritage listed dwelling and ancillary items at Lot 83 in Deposited Plan 5989, known as 201 Prince Edward Park Road, Woronora NSW 2232, subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 17 July 2023