Le v Bayside Council

[2022] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation:

Le v Bayside Council [2022] NSWLEC 1372

Hearing dates:

Conciliation conference on 7 July 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application No. 2021/5 for the demolition of an existing detached garage and shed and construction of a two (2) storey outbuilding comprising garage at ground floor and rumpus room at first floor level on land legally described as Lot 73 in Deposited Plan 4341 and known as 63 Crawford Road, Brighton-Le-Sands is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – double garage and rumpus room – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2021, cl 1.8A
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34, 34AA
Rockdale Local Environmental Plan 2011, cll 6.1, 6.2, 6.7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Category:

Principal judgment

Parties:

Tram Ngoc Thi Le (Applicant)
Bayside Council (Respondent)

Representation:

Solicitors:
A Gough (Applicant)
P Hudson (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/63515

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 Tram Ngoc Thi Le (the Applicant) against Bayside Council’s (the Respondent) refusal of Development Application No. 2021/5 on 8 October 2021.

2. The development application seeks development consent for the demolition of the existing detached garage and shed and construction of a two (2) storey outbuilding comprising a garage at ground floor and rumpus room, with balcony fronting Sybil Lane, at the first floor level. The development is to be constructed on Lot 73 in Deposited Plan 4341 being land known as 63 Crawford Road, Brighton-Le-Sands.

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 7 July 2022.

4. As part of the Court process, the parties undertook a site view. The parties heard oral submissions from neighbours regarding the proposed development. Whilst a number of issues were raised, privacy and solar access impacts were key aspects of the oral and written submissions.

5. The Applicant lodged amendments to the application on the NSW Planning Portal and these changes were accepted by the Respondent. Amendments included:

1. The height of the outbuilding was reduced from 6.67metres to 5.25 metres.

2. The roof of the outbuilding was redesigned with the gable roof ends facing the side boundaries.

3. The introduction of dormer window elements on the eastern and western roof planes.

4. A new doorway from the garage to Sybil Lane.

5. The reduction in the size of the first floor rumpus room from 39m² to 30m². The Floor Space Ratio (FSR) for the proposed development is reduced from 0.45:1 to 0.42:1.

6. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions.

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

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. 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). In reaching that state of satisfaction, I note the following:

1. The Bayside Local Environmental Plan 2021 (BLEP 2021) commenced on 27 August 2021 and replaced the Rockdale Local Environmental Plan 2011 (RLEP 2011). Clause 1.8A of the BLEP 2021 sets out a savings provision requiring the development application, which was lodged prior to the making of the plan, to be assessed against the RLEP 2011.

2. Pursuant to the RLEP 2011, the subject site is zoned R2 Low Density Residential. In determining the development application, I have had regard to the objectives of the zone.

3. The proposed development does not contravene a development standard in RLEP 2011, nor in any other applicable environmental planning instrument.

4. The requirements in cl 6.1 of RLEP 2011 concerning Acid Sulfate soils are satisfied having regard to the minor nature of the proposal, including minimal excavation.

5. The requirements in cl 6.2 of RLEP 2011 concerning earthworks are met given the minor nature of the development. The parties agree that the development will have minimal impact on environmental functions and processes.

6. The requirements in cl 6.7 of RLEP 2011 concerning stormwater management are satisfied having regard to the minor nature of the development (being less than 60m²). Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

7. The development application was advertised and notified for 14 days from 18 January 2021 to 2 February 2021. Subsequent notification periods were undertaken, including notification of the amended application lodged on the NSW Planning Portal (which is now the basis of the parties agreement).

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

9. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The proposed works do not include any change to the use of land that would result in concern with respect to contamination as the Site has a history of residential use.

10. On the basis of the above considerations, the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

11. In reaching this conclusion, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

12. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application No. 2021/5 for the demolition of an existing detached garage and shed and construction of a two (2) storey outbuilding comprising garage at ground floor and rumpus room at first floor level on land legally described as Lot 73 in Deposited Plan 4341 and known as 63 Crawford Road, Brighton-Le-Sands is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (271193, pdf)

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Decision last updated: 15 July 2022