Lysenko v Strathfield Municipal Council

[2021] NSWLEC 1164

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lysenko v Strathfield Municipal Council [2021] NSWLEC 1164

Hearing dates:

Conciliation conference on 23-24 March 2021

Date of orders:

7 April 2021

Decision date:

07 April 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to Development Application No. 2020/110/1 for demolition of all structures on land and the erection of a 2 storey dwelling with a swimming pool and alfresco dining area, basement car park for 2 cars, landscaping and a front fence with side returns as 13 Victoria Street, Strathfield, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979 ss 34, 34AA

State Environmental Planning Policy No 55 – Remediation of Land cl 7

Strathfield Local Environmental Plan 2012 cl 6.4

Category:

Principal judgment

Parties:

Nicholas Lysenko (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/279028

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of all structures on land at 13 Victoria Street, Strathfield, and the construction of a two-storey dwelling house with basement parking. The development application was lodged on 19 June 2020. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 23 March 2021, and continued on 24 March 2021. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 31 March 2021 and is supported by a Jurisdictional Statement that sets out the background, the amendments to the plans and the jurisdictional considerations. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application include a reduction of the finished floor level of the ground floor, changes to the roof form to achieve a pitched roof, a schedule of external colours and materials so that the colours and materials are sympathetic to the neighbouring heritage items, and increased landscaping along both sides of the driveway and along the street fence, to reduce the visual impact of the driveway and garage door.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 Low Density Residential under the Strathfield Local Environmental Plan 2012 (“SLEP 2012”), and dwelling houses are permissible in the zone.

• The proposed development complies with the applicable development standards in the SLEP 2012, including height and floor space ratio.

• Adequate arrangements have been made for stormwater drainage, consistent with cl 6.4(3) of the SLEP 2012.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated.

• The development application was publicly notified, in response to which two submissions were received, and the content of those submissions have been considered.

5. 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)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Development Application No. 2020/110/1 for demolition of all structures on land and the erection of a 2 storey dwelling with a swimming pool and alfresco dining area, basement car park for 2 cars, landscaping and a front fence with side returns as 13 Victoria Street, Strathfield, subject to the conditions set out in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (385833, pdf)

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