Mahathevan v City of Canada Bay Council

[2022] NSWLEC 1213

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mahathevan v City of Canada Bay Council [2022] NSWLEC 1213

Hearing dates:

Conciliation conference on 13 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA2021/0108 for demolition of existing structures and the erection of a two-storey dwelling with basement, in ground swimming pool and fencing on land legally comprising of the allotment described as Lot A DP320535, known as 38 Salt Street, Concord is determined by the granting of consent subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.1, 6.2, Sch 5

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

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

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

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

Category:

Principal judgment

Parties:

Mahinthan Mahathevan (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
City of Canada Bay Council (Respondent)

File Number(s):

2021/360847

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the City of Canada Bay Council (the Respondent) of Development Application No. 2021/0108 seeking consent for the demolition of existing structures and the erection of a two-storey dwelling with basement, in-ground swimming pool and fencing on Lot A in DP 320535 otherwise known as 38 Salt Street, Concord (the site).

2. The appeal was listed for mandatory conciliation on 13 April 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. Prior to the conciliation conference, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, largely addressed the matters in contention.

4. The proceedings commenced onsite at which the Court, in the company of the legal representatives and experts, visited the subject site, and a neighbouring property at 36 Salt Street, at which a resident’s objection was heard.

5. Following the onsite view, I presided at the conciliation conference at which the Applicant agreed to a further amendment that the parties accept can be reasonably described in conditions of consent.

6. On the basis of the amendment described in the conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 April 2022.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [14].

10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

1. The site is located within the R2 Low Density Residential zone, pursuant to the Canada Bay Local Environmental Plan 2013 (CBLEP), in which development for the purpose of a dwelling house is permitted with consent, where the following objectives are achieved:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. The proposal complies with the development standards in respect of height of buildings at cl 4.3 of the CBLEP, and floor space ratio at cl 4.4 CBLEP.

3. The site adjoins, at Nos 34 and 36, sites identified in Sch 5 of the CBLEP as demonstrating local heritage significance. Sites in the vicinity of a heritage item(s) may be subject to the preparation of a heritage management document that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item, pursuant to cl 5.10(5)(c) of the CBLEP. Such a document has not been required as the parties agree that the items at Nos 34 and 36 are not adversely affected.

4. While the site is identified as being within class 5 Acid Sulfate Soils by the relevant map at cl 6.1(2) of the CBLEP and is within 500m of class 2 land that is below 5m AHD, on the basis of the sample testing results in Section 3.6.3 of the Geotechnical Site Investigation Report prepared by Geotesta, dated 28 April 2021, I am satisfied that the site is not susceptible to acid sulfate soil.

5. On the basis of the report cited above, the Stormwater Layout Drawings prepared by Mance Arraj Civil & Structural Engineers dated May 2021, and the agreed conditions of consent, I am satisfied in respect of those matters at cl 6.2(3) of the CBLEP as regards earthworks.

6. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1185174S_02), prepared by EPS dated 8 April 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

7. I accept the agreed position of the parties that the site has historically been used for residential purposes and that the Respondent’s records indicate that the site is not contaminated and does not adjoin any land known to be contaminated. On this basis, I am satisfied that the site is not contaminated, pursuant to cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

11. 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.

12. 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 whatsoever of the issues that were originally in dispute between the parties.

Orders

13. The Court notes that:

1. City of Canada Bay Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application Number DA2021/0108 filed with the Court on 20 December 2021 with the plan listed in Condition 1 of the Conditions of Consent provided as Annexure ‘A’ to this agreement.

2. The applicant is to upload the amended development application on the NSW planning portal by 14 April 2022.

3. The applicant is to file the amended application with the Court by 19 April 2022.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2021/0108 for demolition of existing structures and the erection of a two-storey dwelling with basement, in ground swimming pool and fencing on land legally comprising of the allotment described as Lot A DP320535, known as 38 Salt Street, Concord is determined by the granting of consent subject to the conditions set out in Annexure “A” to this agreement.

……………………

T Horton

Commissioner of the Court

(Annexure A) (461217, pdf)

**********

Decision last updated: 22 April 2022