McDougall v Northern Beaches Council

[2024] NSWLEC 1533

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDougall v Northern Beaches Council [2024] NSWLEC 1533

Hearing dates:

Conciliation Conference on 22 July 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA2022/2207 for the demolition of existing structures and construction of a dwelling house with swimming pool at Lot A, DP 358783, known as 30 Abernethy Street, Seaforth NSW 2092, is determined by the grant of development consent subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition and construction new dwelling house and pool – steep land – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA, 3.9

Roads Act 1993, s 138

Environmental Planning and Assessment Regulation 2021, s 23

Manly Local Environmental Plan 2013, cll 2.7, 4.3, 4.6, 6.2, 6.4, 6.8, 8.8

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6

Cases Cited:

Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; (1989) 67 LGRA 181

Texts Cited:

Northern Beach Community Participation Plan 2019

Category:

Principal judgment

Parties:

Adam Scott McDougall (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Patterson (solicitor) (Respondent)

Solicitors:
Whiteacre Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/449599

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council (the Council) of DA2022/2207 (the Development Application) for the demolition of existing structures and construction of a dwelling house with swimming pool (the Proposed Development) at 30 Abernethy St, Seaforth, NSW 2092, being Lot A DP 358783 (the Site).

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

3. 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 and which addressed the Council’s contentions. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. As part of the joint reporting process, the Applicant provided the Respondent with amended plans and supporting material, which were considered in the joint report prepared by the parties town planners 9 July 2024 with amended plans being the subject of leave granted on 19 July 2024 (Final Plans).

5. The Final Plans result in modifications to the proposed dwelling to reduce the bulk and scale, provide additional landscaping and otherwise address the contentions. In particular the changes involve (Jurisdiction Statement):

“a. Architectural plans

i. Basement Floor Level

1. Westerly extent of basement floor reduced

2. Rumpus room and guest bedroom reduced

3. GFA from 74.1m2 to 52.1m2 reduced

ii. Ground Floor Level

1. Westerly extent of interim spaces reduced

2. Bedrooms reduced in size

3. Westerly projection of deck reduced by 700m

4. GFA reduced from 114m2 to 102.6m2

iii. First Floor

1. Westerly projection of deck reduced by 1500mm

2. Skylight and void introduced to provide light to the ground floor

3. Reduction of the north-western corner of the first floor deck by 1.805m

4. GFA reduced from 125m2 to 122.4m2

iv. Floor Space Ratio

1. The reduced GFA of 277.1m2 to a compliant FSR of 0.4:1.

b. Landscape Plans: changes to the ensure consistency with the suite of architectural and stormwater plans

c. Stormwater Drainage Plans: changes to the ensure consistency with the suite of architectural and landscaping plans

d. clause 4.6 request: to reflect the amended Architectural Plans and additional information received as a result of the photomontage set showing potential view impact and view loss.”

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

7. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

Owners Consent

8. The Applicant and his wife are the registered proprietors of the Site and both owners consented to the making of the DA pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021.

9. All works are confined to the Site with one exception. Demolition works are proposed in the frontage of the Site in the Council’s road reserve, to be carried out in accordance with an approval under s 138 of the Roads Act 1993.

10. As the owner of this land is the consent authority, the Court has the jurisdiction under s 39(2) of the LEC Act to exercise the function of the consent authority as landowner: Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; (1989) 67 LGRA 181.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. The Site is identified as being within the ‘Coastal Environment Area’ and ‘Coastal Use Area’ on the relevant maps under the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) ss 2.10 – 2.13 , which requires consideration.

12. In satisfaction of the matters listed under s 2.10(2), as set out in the Council’s Assessment Report the parties are satisfied and the Court accepts that the matters listed in s 2.10(1)(a) to (g) have been avoided and minimised, with conditions recommended where appropriate.

13. The Site is identified as Coastal Use Area as defined by the RH SEPP. Section 2.11 of the RH SEPP provides that development consent must not be granted to development on land that is within the coastal use area unless the consent authority has considered whether the Proposed Development is likely to cause an adverse impact on aspects, uses and natural features of the coastal environment listed in s 2.11(1)(a) – (c).

14. The parties advise in the Statement and the Court accepts that:

• The Council’s Assessment Report deemed the Proposal acceptable in response to the provisions of the RH SEPP and that the relevant impacts are avoided and minimised in the Proposed Development;

• Matters raised by s 2.11(1)(b)(i)-(iii) of the RH SEPP have been satisfied by the Final Plans;

• With respect to s 2.12 of the RH SEPP the Proposed Development does not increase the risk of coastal hazards having regard to the distance of the Site to the foreshore and elevation from the foreshore area; and

• Section 4.6(2) of the RH SEPP is not engaged due to the long standing and continuing use, under the Proposed Development residential use, of the Site.

Manly Local Environmental Plan 2013

15. The Site is zoned R2 Low Density Residential under the Manly Local Environmental Plan 2013 (MLEP) and dwelling houses are permissible with consent in the R2 zone.

16. The parties agree and the Court accepts that the development by its form and nature is consistent with the objectives of the R2 zone.

17. Clause 2.7 of MLEP (demolition) provides that demolition is permissible with consent. To the extent demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.

Height of Buildings

18. The Proposed Development is non-compliant with the 8.5 metre height of buildings development standard under cl 4.3 of the MLEP.

19. The greatest extent of non-compliance is to the pergola structure on the first floor of 2.58m or 30.35%. The proposed roof peak is at 62.68m. This is a non-compliance of 660mm or 7.76%. The extent of the numerically non-compliant elements is less than 10% of the building.

20. The Final Plans are accompanied by a cl 4.6 request for building height prepared by SJB Planning (the Clause 4.6 Request) which supports:

1. 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.

21. For the purposes of cl 4.6(4), the parties agree that:

1. the Clause 4.6 Request has adequately addressed the matters required to be demonstrated by subcl (3), and

2. the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the R2 zone.

22. The Court accepts the parties agreement and conclusions that the Clause 4.6 Request satisfies the tests in cl 4.6 of the MLEP and for these reasons the Court finds that the Clause 4.6 Request for the variation of the Height of Buildings standard is upheld for the Proposed Development.

23. The parties Statement examines in detail a number of provisions of the MLEP at pars 44 to 68. I am satisfied that the parties analysis of the applicability or otherwise of these planning controls discloses that no jurisdictional impediments arise and all matters of relevance have been considered by the parties with respect to the Proposed Development on the Site. Of particular relevance are Earthworks (cl 6.2), Stormwater (cl 6.4) and in particular, due to the topography of the land, landslide risk (cl 6.8) which I set out below.

Landslide risk

24. The parties Statement is as follows:

“Landslide risk

61.    The site is mapped ‘landslide risk’ in the MLEP under clause 6.8.

62.    Clause 6.8(3) provides: before determining a development application for development on land to which this clause applies, the consent authority must consider the following matters to decide whether or not the development takes into account the risk of landslide—

(a)    site layout, including access,

(b)    the development’s design and construction methods,

(c)    the amount of cut and fill that will be required for the development,

(d)    waste water management, stormwater and drainage across the land,

(e)    the geotechnical constraints of the site,

(f)    any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

63.    In relation to these issues:

a.    The 2024 Geotechnical Report provides a proposed Construction Methodology Plan relating to proposed excavation works around the proposed new garage in the south-eastern corner which adjoins an existing underground storage room beneath the carport of the adjoining No. 28 Abernethy Street, which has right of access for No. 26.

b.    The Construction Methodology Plan in that report also details the development’s design and construction methods.

c.    the building footprint will require a cut and fill earthworks into the natural slope. The Geotechnical Report at 5.5 provides:

‘A maximum excavation of approximately 6.0m below ground surface (bgs) is expected while filling to a depth of 1.0 to 1.5m would be possible and probably cost effective beneath the proposed verandah and outdoor area between the dwelling and pool to achieve the proposed levels. The bulk excavation level for the swimming pool was not shown on the architectural drawings, however given the interpreted slope profile only minor excavations into the fill and natural slope would be expected. The excavation required for the front courtyard, driveway and garage, will extend up to the side (northern and southern) boundaries, while the deeper excavations for the main dwelling will be setback from the boundaries.’

d.    On (d) waste water management, stormwater and drainage across the land, wastewater is dealt with in the Council’s reticulated system. Stormwater and drainage are addressed by the stormwater plans at Tab 1.9 of the Final Plans.

e.    the geotechnical constraints of the site are addressed at Chapter 4 of the 2024 Geotechnical Report.

f.    The measures pproposed to avoid, minimise or mitigate the impacts of the development are set out at 5.5 and 5.6 of the 2024 Geotechnical Report.”

25. I note that in relation to the management of waste water, stormwater and drainage across the land, pursuant to cl 8.8(4) MLEP, the parties are satisfied and the Court accepts that the rate, volume and quality of water leaving the land will be acceptable because:

1. wastewater is dealt with in the Council’s reticulated system; and

2. Stormwater and drainage are addressed by the stormwater plans at Tab 1.9 of the Final Plans and the rate and volume of stormwater leaving the land will be reduced by its retention in on site tanks. The quality of waters will be managed by treatment on site including filtration and gross pollutant traps.

26. The parties and their engineers agree, that to the extent that there remains any geotechnical risk, that risk is minimised and mitigated by conditions of consent particularly:

1. condition 11 which requires that a demolition and construction plan is developed, complete with hold and witness points;

2. condition 23 which requires all recommendations included in the 2024 Geotechnical Report to be complied with during works; and

3. condition 31 which requires ‘Geotechnical Certification Prior to Occupation Certificate.’

27. I am satisfied the parties have considered all relevant jurisdictional matters in respect of earthworks, stormwater and landslip risk in their Statement.

28. No further jurisdictional issues arise under s 4.15(1) of the LEC Act in respect of the Proposed Development.

Notification and Public Interest

29. The DA was notified from 10 January 2023 and 25 January 2023. The Respondent received seven submissions.

30. The Final Plans do not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner described in the relevant section of the Respondent’s Community Participation Plan.

31. A number of adjoining residents addressed the Court at the on site component of the s 34AA Conciliation Conference both from within their dwellings and externally. I am satisfied that the objectors reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion

32. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

33. 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. 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.

Orders:

34. The Court orders:

1. The appeal is upheld.

2. Development Application DA2022/2207 for the demolition of existing structures and construction of a dwelling house with swimming pool at Lot A, DP 358783, known as 30 Abernethy Street, Seaforth NSW 2092, is determined by the grant of development consent subject to conditions in Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 02 September 2024