MacPherson v Northern Beaches Council

[2022] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:

MacPherson v Northern Beaches Council [2022] NSWLEC 1424

Hearing dates:

Conciliation conference on 5 July 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The updated written request pursuant to clause 4.6 of Manly Local Environmental Plan 2013 (MLEP), seeking a variation to the minimum lot size development standard in cl 4.3 of MLEP, prepared by Greg Boston, dated 13 July 2022, is upheld.

(2) The Appeal is upheld.

(3) Development Consent is granted to Development Application DA2021/0521 for alterations and additions to a semi-detached dwelling at 111 Bower Street, Manly subject to the conditions in Annexure A.

(4) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15 (3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $3000 within 28 days of the orders being made by the Court.

Catchwords:

APPEAL – development application – grant of consent subject to conditions requiring changes to the design – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 , ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013, cll 4.3, 4.6, 6.5, 6.9

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

Category:

Principal judgment

Parties:

Alexander MacPherson (First Applicant)
Kate Mansour (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicants)
J Simpson (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicants)
Northern Beaches Council (Respondent)

File Number(s):

2022/73250

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the determination of Northern Beaches Council to grant a development consent for alterations and additions to a semi-detached dwelling at 111 Bower Street, Manly, subject to conditions. The applicant was dissatisfied with condition 1(d), which required a redesign of aspects of the proposed alterations. The appeal is lodged 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 [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 July 2022. I presided over the conciliation conference.

3. At 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 subsequently filed on 30 July 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The amendments to the plans include a reduction in the upper level gross floor area at the top of the stairs, a reduction in the overhang of the east-facing roof to reduce bulk and minimise the impact on views from 113 Bower Street, and a reduction in the length of the master bedroom balcony and an additional setback in the rear balcony roof, to reduce the bulk of the building when viewed from 109 Bower Street. The amended development application also includes an amended request to vary the height development standard, a solar access assessment and a view impact assessment.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Submission that sets out the nature of the proceedings, how they have been resolved, and the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Submission, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1.

5. 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 R1 Residential Living pursuant to the Manly Local Environmental Plan 2013 (MLEP) and the proposed development is permissible with consent in the zone.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the MLEP. The proposed maximum height of 9.5m represents a contravention of 1m above the numerical standard. I am satisfied that the written request, lodged pursuant to cl 4.6 of the MLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the development to maintain the established height and symmetry of the pair of semi-detached dwellings, which already breach the height development standard. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• Clause 6.5 of the MLEP applies as the site is mapped as terrestrial biodiversity as it is in an area that is a known habitat for the longnose bandicoots. Based on the Statement of Environmental Effects dated May 2021 and the nature of the proposed development, I have considered the matters in cl 6.5(3) and I am satisfied of the matters in cl 6.5(4).

• Clause 6.9 of the MLEP applies as the site is in the Foreshore Scenic Protection Area. Based on the Statement of Environmental Effects dated May 2021, I have considered the matters in cl 6.9(3).

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation.

6. 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)).

7. 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.

8. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA2021/0521 in accordance with the documents listed below (Amended Development Application):

Architectural Plans
Drawing No.	Dated		Prepared By
DA03 Site / Roof Plan, Sediment Plan, Waste Management Plan and Concept Stormwater Plan	Rev. A, 18 July 2022		Action Plans
DA07 Proposed Ground Floor Plan	Rev. A, 18 July 2022		Action Plans
DA08 Proposed Storage Plan	Rev. A, 18 July 2022		Action Plans
DA09 Proposed First Floor Plan	Rev. A, 18 July 2022		Action Plans
DA10 Proposed Terrace Roof Plan	Rev. A, 18 July 2022		Action Plans
DA11 North Elevation	Rev. A, 18 July 2022		Action Plans
DA12 East Elevation	Rev. A, 18 July 2022		Action Plans
DA13 South Elevation	Rev. A, 18 July 2022		Action Plans
DA14 West Elevation	Rev. A, 18 July 2022		Action Plans
DA15 Long Section	Rev. A, 18 July 2022		Action Plans
DA16 Cross Section	Rev. A, 18 July 2022		Action Plans
BASIX Certificate No. A342673_08	Rev. A, 18 July 2022	Action Plans

2. The Amended Development Application documents listed above were lodged on the NSW planning portal on 27 July 2022.

3. The Amended Development Application was filed with the Court on 30 July 2022.

Orders

9. The Court orders that:

1. The updated written request pursuant to clause 4.6 of Manly Local Environmental Plan 2013 (MLEP), seeking a variation to the minimum lot size development standard in cl 4.3 of MLEP, prepared by Greg Boston, dated 13 July 2022, is upheld.

2. The Appeal is upheld.

3. Development Consent is granted to Development Application DA2021/0521 for alterations and additions to a semi-detached dwelling at 111 Bower Street, Manly subject to the conditions in Annexure A.

4. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15 (3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $3000 within 28 days of the orders being made by the Court.

……………………….

J Gray

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 11 August 2022