Lee v City of Canada Bay Council

[2025] NSWLEC 1766

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v City of Canada Bay Council [2025] NSWLEC 1766

Hearing dates:

Conciliation Conference on 8 and 9 September 2025

Date of orders:

23 October 2025

Decision date:

23 October 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA2024/0183 as amended for the demolition of existing structures, erection of a two-storey dwelling and landscaping at 65 Byrne Avenue, Russell Lea, 2046, is approved subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7

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

Canada Bay Local Environmental Plan 2013, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Texts Cited:

Canada Bay Development Control Plan 2023

Category:

Principal judgment

Parties:

Andy Lee (First Applicant)
Christina Tong (Second Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (First and Second Applicants)
R McCulloch (Solicitor) (Respondent)

Solicitor:
Storey & Gough Lawyers (First and Second Applicants)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2025/156048

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the City of Canada Bay Council of development application DA2024/0183 (the DA). The DA sought consent for the demolition of existing structures, erection of a two-storey dwelling and landscaping at 65 Byrne Avenue, Russell Lea, 2046, legally known as Lot 8 DP 224308 (the site).

2. The DA was lodged on 27 September 2024. The DA was refused by the Respondent on 24 January 2025. The Applicant filed a Class 1 Application with the Court on 23 April 2025.

3. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 28 May 2025. The Joint Expert Reports (Town Planners and Arborists) were filed with the Court of 22 August 2025.

4. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 8 September 2025. I presided over the conciliation conference, which commenced with an on-site view, attended by one submitter who made submissions to the Court.

5. At the first day of the conciliation conference, the parties advised that they had reached an in principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

7. The signed s 34 agreement, Annexure A (Conditions of Consent) and amended architectural plans (the amended DA) were filed on 9 September 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

8. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

9. In particular the changes in the amended DA included:

1. Changes to the landscape plan to retain and protect the mature tree in the rear yard of the site and to change the proposed tree species to be planted in the front yard;

2. Further setting back of the rear of the proposed dwelling to protect the tree root zone in the rear yard;

3. Widening the view corridor at the side of the proposed dwelling;

4. Changing the roofline of the dwelling to improve views from units at the rear of the site; and

5. Removing balcony and windows to rear upper level bedrooms and using angled screens on remaining windows.

10. 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.

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Environmental Planning and Assessment Act 1979

Owner’s consent

13. The parties advise that the Applicants are the owners of the site.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

14. The DA was publicly notified from 2 October 2025. Nine submissions were received objecting to the proposed development.

15. The parties advise that the amended DA was not re-notified as the Respondent formed the view that the amendments to the proposed development did not increase its environmental impacts.

Conditions

16. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Canada Bay Local Environmental Plan 2013

17. The Canada Bay Local Environmental Plan 2013 (LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 - low Density Residential pursuant to cl 2.2 of the LEP; and

1. Development for the purpose of a dwelling house is permitted with consent under cl 2.3 of the LEP;

2. Demolition is permitted with consent under cl 2.7 of the LEP;

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

18. Clause 4.3 of the LEP relates to height of buildings. The site has a maximum building height of 8.5m under the LEP. The parties advise that the proposed building height is 6.21m, complying with cl 4.3 of the LEP.

19. Clause 4.4 of the LEP relates to floor space ratio (FSR). Under the FSR Map in the LEP, the maximum floor space ratio (FSR) applicable to the site is 0.5:1. The parties advise that the FSR for the proposed development complies at 0.49:1.

20. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the site is not located within or in the vicinity of a heritage conservation area.

21. Clause 6.1 of the LEP relates to acid sulfate soils. The parties advise that the site is identified as Class 2 land on the Acid Sulfate Soils Map under the LEP. As the construction of footings will be work below natural ground level, an Acid Sulfate Soil Assessment by Geo-Environmental Engineering was undertaken in support of the DA. The parties advise that this assessment concludes that the excavation will not disturb, expose or drain acid sulfate soil materials and therefore an acid sulfate soil management plan is not warranted.

22. Clause 6.2 of the LEP relates to earthworks. The parties advise that the proposed development does not propose any earthworks.

23. Clause 6.4 of the LEP relates to limited development on the foreshore area. The parties advise that the property is not located in a foreshore area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) aims to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. The parties advise that Tree pruning referred to in Condition 3 of the conditions of consent does not require a permit or approval as it is not clearing of vegetation as defined in s 2.2 of the Biodiversity SEPP.

25. Chapter 6 of the Biodiversity SEPP relates to water catchments and applies to the site. The site is located within the Sydney Harbour Catchment and is therefore land in a Regulated Catchment for the purposes of Pt 6.2, Div 2 of the Biodiversity SEPP, which sets out the relevant considerations for a consent authority in deciding to grant development consent to development on land in a regulated catchment.

26. Further, the parties’ position in relation to ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13 and 6.14 of the Biodiversity SEPP, is that the proposed development complies with the relevant provisions and that the Court may be satisfied that consent can be granted to the carrying out of the proposed development on the site.

State Environmental Planning Policy (Sustainable Building) 2022

27. The parties advise that the proposed development is for BASIX development as defined in the Dictionary of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) because it is “a building that contains at least 1 dwelling”.

28. BASIX certificate no. 1762878S dated 4 September 2024 was submitted with the original DA. As amended DA does not propose any significant changes to the built form of the original proposed development, this BASIX certificate can be applied to the amended DA.

29. The embodied energy report which is required under s 2.1(5) of the State Environmental Planning Policy (Sustainable Building) 2022 forms part of the online BASIX tool and is covered by the BASIX Certificate.

State Environmental Planning Policy (Resilienceand Hazards) 2021

30. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties have advised that due to the historical use of the land for residential purposes, the parties are satisfied that it is highly unlikely that the land is contaminated and they consider the land to be suitable for the proposed development; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Canada Bay Development Control Plan 2023

31. The parties advise that all of the matters contained in s 4.15(1)(b)-(e) of the EPA Act (including the Canada Bay Development Control Plan 2023) (the DCP) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions.

Conclusion

32. Having considered the advice of the parties provided above at [14]-[41], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

33. Further, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. The Court notes:

1. that the City of Canada Bay Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA No.2024/0183 made on 9 September 2025 to rely on the documents specified below:

1. Architectural Plans by TSF Architects dated 3 September 2025: - A0.01 Revision J, A1.01-A1.04 Revision J, A1.05 Revision H, A2.01 Revision I, A2.02 Revision H, A2.03 Revision E, A3.01 Revision G, A4.01-A4.03 Revision F, A5.01 Revision E, A5.02 Revision F, A6.01 Revision G, A6.02 Revision E

2. View Impact Assessment by Veew Studio, Revision B dated 5 September 2025

3. Amended Arboreal Impact Assessment by Arbor Express, version V1 dated 7 September 2025

4. Survey Plan numbered 210986/001B dated 6 August 2025 prepared by RGM Property Surveys

5. Landscape Plan prepared by Total Concept Landscape and Swimming Pool Designers numbered L/01B – L.05B dated 4 July 2025

35. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA2024/0183 as amended for the demolition of existing structures, erection of a two-storey dwelling and landscaping at 65 Byrne Avenue, Russell Lea, 2046, is approved subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (316 KB, pdf)

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Decision last updated: 23 October 2025