McGregor v Northern Beaches Council

[2022] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation:

McGregor v Northern Beaches Council [2022] NSWLEC 1287

Hearing dates:

Conciliation conference held on 30 May 2022

Date of orders:

07 June 2022

Decision date:

07 June 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application No. DA2021/1334 for the proposed Community Title subdivision of one lot into three lots, demolition of existing dwelling house and carport, construction of two driveways with street cross overs, infrastructure services connections and ancillary site works at Lot 4 DP 30205, also known as 50 Condover Street, Balgowlah NSW 2093, is determined by the granting of consent subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Community title subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, ss 34

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

Warringah Local Environmental Plan 2011, cl 2.3

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Adrian McGregor (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A. Hemmings (Applicant)
P Gough (Respondent)

Solicitors:
Maddocks (Applicant)
Storey & Gough (Respondent)

File Number(s):

2021/339186

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the actual refusal of Development Application DA 2021/1334 by Northern Beaches Council (hereafter the Council) which seeks demolition of existing structures, Community Title subdivision from one lot into three lots driveway construction and connection to services infrastructure on Lot 4 DP 30205, also known as 50 Condover Street, Balgowlah (the site).

Background

2. The DA was submitted to Council on 6 August 2021, and after notification, made consistent with the relevant planning controls, one submission was received during the notification period. The DA was refused by Council on 11 November 2021.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to the conversion of the scheduled hearing to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held by Microsoft Teams and with an onsite view at the request of the parties.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have been satisfied. The decision of the parties is to uphold the appeal and grant consent to DA2021/1334, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA2021/1334, subject to conditions described in Annexure ‘A’.

Jurisdictional prerequisites

8. The DA was submitted with the consent of the site owners, pursuant to cl 49 of the EPA Reg.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the development application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Warringah Local Environmental Plan 2011 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the WLEP.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, the amended DA addresses the relevant requirements of cl 4.6 of SEPP Resilience.

3. Warringah Development Control Plan 2011 (WDCP):

1. The relevant requirements of the WDCP, and in particular those raised in contention relating to subdivision management and unique environmental features, are addressed, based on the amended plans, supporting documents to the DA and conditions of consent. The original DA was publicly notified in accordance with the WDCP, and the (resident) submission received has been appropriately assessed.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement, or for the Court in making the orders as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submission.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA DA2021/1334 can be determined by the granted consent.

13. 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.

14. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA2021/1334.

2. The amended development application documents were lodged on the NSW Planning Portal on 30 May 2022.

3. The amended development application was filed with the Court on 30 May 2022.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2021/1334 for the proposed Community Title subdivision of one lot into three lots, demolition of existing dwelling house and carport, construction of two driveways with street cross overs, infrastructure services connections and ancillary site works at Lot 4 DP 30205, also known as 50 Condover Street, Balgowlah NSW 2093, is determined by the granting of consent subject to the conditions set out in Annexure ‘A’.

Sarah Bish

Commissioner of the Court

Annexure A (183277, pdf)

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Decision last updated: 07 June 2022