Loe v Northern Beaches Council

[2020] NSWLEC 1505

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Loe v Northern Beaches Council [2020] NSWLEC 1505

Hearing dates:

Conciliation conference on 28 and 29 September 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [15]

Catchwords:

DEVELOPMENT APPLICATION – 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

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

State Environmental Planning Policy No 55 – Remediation of Land

Warringah Local Environmental Plan 2011

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Justin Loe (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Hones (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/39301

Publication restriction:

No

Judgment

1. COMMISSIONER: Justin Loe (the Applicant) has appealed the refusal by Northern Beaches Council (the Respondent) of his development application DA2019/1175, made with the owners’ consent, seeking approval for the demolition of an existing structure and which the Applicant characterised as alteration and additions, and which the Respondent characterised as construction of a dwelling, (the Proposed Development) at 55 Wheeler Parade, Dee Why (the Subject Site).

2. The Proposed Development includes:

1. at lower ground floor level:

1. minor reconfigurations and provision of a new front door;

2. at ground level:

1. demolition of existing external and internal walls;

2. deletion of existing kitchen, dining and living rooms;

3. construction of new external walls with increased side setback;

4. provisions of four bedrooms, one master bedroom, cantilevered over the entry driveway, and a bathroom, laundry, stairs and outdoor dining area;

3. at first floor level:

1. demolition of external and internal walls;

2. deletion of existing bedrooms, bathroom, living room and balcony;

3. construction of new external walls with increased side setback;

4. provision of a retreat, dining room, kitchen, living room and outdoor living area;

5. rolled metal roof with skylight.

3. The Subject Site is zoned R2 Low Density Residential under the provisions of Warringah Local Environmental Plan 2011, and a dwelling is a permissible development within this zone.

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 28 and 29 September 2020, and I presided over that conciliation conference.

6. Although the conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy, a site view was undertaken during the conference, and submissions were received from two residents:

1. Mr David Martin, a resident of an adjoining property, who said that his principal concern related to the view loss impacts upon his property of the Proposed Development, as well as potential impacts on the values of properties in the vicinity of the Proposed Development;

2. Mr Sherif Hanna, a resident of an adjoining property, who said that his principal concern related to potential overlooking and privacy impacts of the Proposed Development, as well as potential impacts on the values of properties in the vicinity of the Proposed Development.

7. At 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 upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. pursuant to the provisions of s 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55):

1. the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied that the Subject Site is not contaminated; and

2. the Parties are satisfied that the Subject Site poses no risk of contamination and therefore, no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for residential land use.

2. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), an updated BASIX Certificate No. A352206_02 has been prepared in respect of the Applicant’s amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate;

3. pursuant to the provisions of Warringah Local Environmental Plan 2011 (WLEP), the Proposed Development, as amended:

1. does not comply with the applicable height of buildings development standard set out in cl 4.3 of the WLEP, and a written request to vary that standard has been prepared pursuant to the provisions of clause 4.6 of WLEP. That written request has been prepared by Nick Juradowitch, dated August 2020. As required by cl 4.6(3) of the WLEP, the Applicant’s written request justifies the contravention of the relevant development standard by demonstrating:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. that there are sufficient environmental planning grounds to justify contravening the development standard.

2. complies with cl 6.1 Acid Sulfate soils in WLEP as the site is not identified on the Acid Sulfate Soils Map;

3. complies with cl 6.2 Earthworks in WLEP following consideration of the matters set out in cl 6.2(3).

4. the Applicant’s development application was notified in accordance with the requirements of the EP&A Act, the EP&A Regulation and Warringah Development Control Plan 2011.

10. In relation to the Applicant’s written request to vary the height of buildings development standard in cl 4.3 of WLWP (see above at [9(3)(a)]), the Parties have confirmed that, in their opinion,:

1. for the purposes of cl 4.6(4)(a) of the WLEP, the Court may be satisfied, that:

1. the Applicant’s written request has adequately addressed the matters required to be demonstrated by subclause 4.6(3) of WLEP; and

2. the proposed development will be in the public interest because it is consistent with:

1. the objectives of the height of buildings standard in cl 4.3 of WLEP; and

2. the objectives for development within the R2 Low Density Residential zone in which the Proposed Development would be carried out.

2. for the purposes of cl 4.6(4)(b) of the WLEP, and pursuant to s 39(2) of the LEC Act, the Court on appeal may grant consent to development which contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment.

3. the granting of development consent would not approve development that would contravene any of the matters set out in cl 4.6(8) of WLEP.

11. Having considered the advice of the Parties, provided above at [9] and [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further 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.

13. 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.

14. 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.

15. The Court orders that:

1. Leave is granted to the Applicant to amend the Applicant’s name in the proceedings to Justin Loe.

2. Leave is granted to the Applicant to rely on the following architectural plans prepared by StudioJLA Architecture & Interiors dated 20 August 2020:

1. Drawing No. 0328/LEC01/E – Site/Roof Plan (Issue E);

2. Drawing No. 0328/LEC02/E – Lower Ground Floor Plan (Issue E);

3. Drawing No. 0328/LEC03/E – Ground Floor Plan (Issue E);

4. Drawing No. 0328/LEC04/E – Level 1 Plan (Issue E);

5. Drawing No. 0328/LEC08/E – Proposed Section AA (Issue E);

6. Drawing No. 0328/LEC09/E – Proposed Section BB (Issue E);

7. Drawing No. 0328/LEC10/E – Section AA – Roof Detail (Issue E);

8. Drawing No. 0328/LEC11/E – Proposed Landscape Calculation Plan (Issue E);

3. Leave is granted to the Applicant to rely on the following architectural plans prepared by StudioJLA Architecture & Interiors dated 19 August 2020:

1. Drawing No. 0328/LEC12/D – Privacy Impact Analysis – GS Master Bedroom - Section (Issue D);

2. Drawing No. 0328/LEC13/D – Privacy Impact Analysis – Level 1 – Outdoor Living – Section (Issue D); and

3. Drawing No. 0328/LEC14/D – Building Envelope Analysis – Aerial 1 (Issue D).

4. Leave is granted to the Applicant to rely on the following architectural plans prepared by StudioJLA Architecture & Interiors dated 28 September 2020:

1. Drawing No. 0328/LEC05/F – Front Elevation (Issue F);

2. Drawing No. 0328/LEC06/F – Rear Elevation (Issue F);

3. Drawing No. 0328/LEC07/F – North and South Elevations (Issue F);

5. Leave is granted to the Applicant to rely on the following revised documents:

1. Ingham Planning Pty Ltd, Request for variation to development standards under clause 4.6 of the Warringah Local Environmental Plan 2011, August 2020.

2. The Applicant’s written request prepared under clause 4.6 of the Warringah Local Environmental Plan 2011 (WLEP 2011), prepared by Ingham Planning Pty Ltd dated August 2020 seeking a variation of the development standard for building height under clause 4.3 of the WLEP 2011 is well founded and upheld.

6. The appeal is upheld.

7. Development Consent is granted to DA2019/1175 for partial demolition and alterations and additions to the existing dwelling at 55 Wheeler Parade, Dee Why subject to the conditions in Annexure “A”.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (133640, pdf)

**********

Amendments

20 November 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.17, the slip rule, by the request of the parties, amend Annexure A by including the plan labelled “Drawing No. 0328/LEC03/E – Ground Floor Plan (Issue E)” prepared by StudioJLA Architecture & Interiors dated 20 August 2020 in the list at Condition 1(a).

Decision last updated: 20 November 2020