Maroun v Fairfield City Council

[2024] NSWLEC 1217

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maroun v Fairfield City Council [2024] NSWLEC 1217

Hearing dates:

Conciliation conference on 11-12 March 2024, 22 April 2024

Date of orders:

30 April 2024

Decision date:

30 April 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. 157.1/2023 for the construction of a dwelling with attached garage and swimming pool with associated earthworks and landscaping, and the relocation of building envelope restrictions at 35 Arundel Road, Horsley Park, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in RU4 Primary Production Small Lot zone – heritage significance – conciliation conference – agreement between experts – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Fairfield Local Environmental Plan 2013, cll 4.1, 4.3, 5.10, 6.1, 6.2, 6.9, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.13

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

State Environmental Planning Policy (Precincts—Western Parkland City) 2021, s 4.17

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Fairfield Citywide Development Control Plan 2013

Fairfield City Stormwater Management Policy 2017

Category:

Principal judgment

Parties:

James Maroun (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/260743

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The owners of land in Horsley Park seek consent for a new dwelling and other works on a battle-axe allotment within the visual catchment of the Horsley Complex, a state heritage listed item that adjoins the subject site.

2. The proposed development is described in Development Application No. 157.1/2023 (the DA) to comprise:

1. Single storey dwelling house

2. Swimming pool

3. Onsite wastewater management system

4. Earthworks and landscaping

3. The DA was lodged with Fairfield City Council (the Respondent) on 26 May 2023 and notified for a period of 14 days from 30 August 2023, in response to which one public submission was received.

4. On 21 July 2023, the Respondent refused the DA and shortly thereafter the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

5. The appeal was listed for mandatory conciliation on 11 March 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. The proceedings commenced on site at which the Court, in the company of the legal representatives and experts, heard oral submissions from a resident of the area who identified overland flow from stormwater as a concern.

7. Following the onsite view, the Court facilitated conciliation discussions in accordance with s 34AA LEC Act.

8. During the conciliation conference, at which I presided, the Applicant agreed to certain amendments that would, in the view of the Respondent, address the matters in contention, subject to time being granted to co-ordinate those amendments in amended plans and other documents.

9. On the basis of the amended plans and agreed conditions of consent that were subsequently provided, 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 s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

10. A signed agreement prepared in accordance with subs 34(10) of the LEC Act was submitted to the Court on 22 April 2024.

11. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

12. Under subs 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [33].

13. 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.

14. The site is located within the RU4 Primary Production Small Lots zone according to the Fairfield Local Environmental Plan 2013 (FLEP), in which dwelling house development is permitted with consent, where consistent with the objectives of the RU4 zone, which are:

•  To enable sustainable primary industry and other compatible land uses.

•  To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards.

15. The proposed development complies with the height of building standard of 9m at cl 4.3 of the FLEP, and with the minimum lot size of 10,000m² at cl 4.1 of the FLEP.

16. While the site is not identified as an item of heritage significance, it adjoins the Horsley Complex, identified in Sch 5 of the FLEP as an item of State heritage significance. As the site is in the vicinity of a heritage item, cl 5.10 of the FLEP is relevant. The Horsley Complex comprises a homestead, outbuildings, garden, and farm, identified as an item of state heritage significance.

17. A Statement of Heritage Impact has been prepared for the Applicant by Heritage 21, dated May 2023. I am advised by the heritage experts in this matter that the location of the proposal on the subject site, as amended, and subject to the preparation of an amended landscape plan that is the subject of agreed conditions of consent, appropriately considers the heritage significance of the Horsley Complex, primarily by setting the proposed development lower on the site.

18. The site is not identified on the relevant acid sulfate soils map at cl 6.1(2) of the FLEP.

19. I have considered the extent of earthworks proposed on the site in the form of cut and fill. On the basis of the following plans and other documentation, I accept the proposal will not have a detrimental impact on the environmental functions, neighbouring uses, or features of the surrounding, pursuant to cl 6.2 of the FLEP:

• Driveway Design Civil Engineering Plans prepared by Telford Civil Engineering dated 18 April 2024

• Stormwater Management Plan (Stormwater Plans) prepared by CK Engineering Services

• Detailed Site Investigation (DSI) dated 5 April 2024, and Remediation Action Plan (RAP) dated 8 April 2024, both prepared Sydney Environmental Group.

20. I have also considered whether those services listed as essential for the development at cl 6.9 of the FLEP are available, or whether adequate arrangements have been made to make them available when required, including the disposal and management of sewage, stormwater drainage or on-site conservation, and suitable vehicular access. I am satisfied that the Stormwater Plans depict on site detention and outflow rates consistent with the provisions of the Fairfield City Stormwater Management Policy 2017. I also note onsite wastewater subsurface irrigation system is denoted to the north west of the site, and that Civil Engineering plans prepared by Telford dated 18 April 2024 provide for vehicular access that complies with the relevant Australian Standards.

21. I have also considered whether the site is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Having regard to the Detailed Site Investigation and Remediation Action Plan (RAP­) prepared by Sydney Environmental Group, I accept that the site is contaminated but that, subject to works consistent with the conclusions at Section 13 of the RAP, and the agreed conditions of consent, the site can be made suitable for the purpose for which development is proposed.

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

22. The Site is identified on the relevant Noise Exposure Contour Map pursuant to s 4.17 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021.

23. An Aircraft Noise Assessment was prepared by Acouras Consultancy in support of the proposal which confirms the proposed development will meet indoor design sound levels in accordance with subs 4.17(4) on land on which development for the purposes of dwelling house development is permitted. Accordingly, the consent authority is not precluded from granting consent to the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. As the site is located within the Hawkesbury-Nepean catchment, Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies.

25. On the basis of the Stormwater Plan, and agreed conditions of consent, I am satisfied that run-off from the site will occur in a controlled manner, consistent with s 6.6, and that no direct, indirect or cumulative impact arises on aquatic ecology when the provisions of s 6.7 of the Biodiversity and Conservation SEPP are taken into consideration.

26. I also note that as the site is not flood liable land, s 6.8 of the Biodiversity and Conservation SEPP does not apply, and that as the site does not adjoin a natural waterbody, s 6.9 likewise does not apply.

27. Having considered those matters at s 6.13 of the Biodiversity and Conservation SEPP that are required to be considered prior to the grant of consent, I accept that the development has minimal human interference with the condition of the sub-catchment, will maintain and enhance the structure of vegetation and scenic quality in the catchment and locality, when prior development on the site is understood.

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

28. The application is accompanied by a BASIX certificate (Cert No. 1388181S) prepared by Building and Energy Consultants Australia in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) and the EPA Regulation.

29. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the development application from the provisions of Sustainable Buildings SEPP.

Conclusion

30. 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.

31. 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.

32. The Court notes that:

1. Fairfield City Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 157.1/2023 in accordance with the following documents:

Document Title	Certificate No	Drawn By	Date
BASIX Certificate	1388181S	Building and Energy Consultants Australia	5 May 2023
Detailed Site Investigation	Sydney Environmental Group	5 April 2024
Remedial Action Plan	Sydney Environmental Group	8 April 2024

Orders

33. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 157.1/2023 for the construction of a dwelling with attached garage and swimming pool with associated earthworks and landscaping, and the relocation of building envelope restrictions at 35 Arundel Road, Horsley Park, is determined by the grant of consent subject to the conditions at Annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 30 April 2024