McMahon-Ford v The Council of the City of Sydney

[2024] NSWLEC 1748

Land and Environment Court

New South Wales

Medium Neutral Citation:

McMahon-Ford v The Council of the City of Sydney [2024] NSWLEC 1748

Hearing dates:

Conciliation Conference on 18 October 2024; final submissions 31 October 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. D/2024/443, as amended, for alterations and additions to an existing building including the construction of a basement, studio on top of an existing garage, the addition of solar panels and a rainwater tank at 13 Princess Avenue, Rosebery NSW 2018 is determined by the grant of consent, subject to the conditions set out at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.21, 6.21C

Category:

Principal judgment

Parties:

Anerys McMahon-Ford (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Hannam (Applicant)
J Mort (Solicitor) (Respondent)

Solicitors:
McMahons Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/268874

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2024/443 for alterations and additions to an existing building including the construction of a basement, studio on top of existing garage, the addition of solar panels and a rainwater tank on the land at 13 Princess Avenue, Rosebery NSW 2018, legally described as Lot 92 DP 654061.

2. The subject site is located on the western side of Princess Avenue, to the south of Cressy Street. The site has rear access to Emanuel Lane. A two storey dwelling addresses Princess Avenue, and a garage with roof top terrace fronting Emanuel Lane.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 October 2024. I presided over the conciliation conference, commencing with an onsite view, in the company of legal representatives, the Applicants and experts.

4. The conciliation was adjourned to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent. On the basis of amended plans 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. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 28 October 2024.

5. 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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. 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.

Jurisdictional Matters and Planning Framework

Sydney Local Environmental Plan

7. The site is located within the R1 General Residential zone, pursuant to Sydney Local Environmental Plan (SLEP) 2012. The proposal is consistent with the objectives of the zone, which are:

To provide for the housing needs of the community

To provide for a variety of housing types and densities

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

To maintain the existing land use pattern of predominantly residential uses

8. Development for the purposes of dwelling houses is permissible in Zone R1. The proposed development is for alterations and additions to an existing dwelling. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

9. The proposal complies with the height of buildings development standard of 9 metres under cl 4.3 of the SLEP 2012. The parties agree that amended plans indicate a maximum height of the proposal as 7.439 metres which complies with this standard.

10. The proposal complies with the maximum FSR of 1:1 that applies to the site under cl 4.4(2) of the SLEP 2012. The parties agree that the amended plans propose an FSR of 0.98:1 which complies with this standard.

11. Pursuant to cl 5.21 of the SLEP 2012, which deals with flood planning, I accept the advice provided in the Flood Control Certificate (Ross Engineers, 9 October 2024) that the proposed development is located beyond the extent of the 1% AEP flood event (although the non-habitable basement is below the 1% AEP), and that the proposed development will not be adversely affected by flooding, and is not envisaged to have a detrimental flood affectation on neighbouring properties. I note that condition 18 of the proposed conditions of consent requires the development to be constructed to comply with the recommended flood planning levels indicated in the above noted Flood Control Certificate.

12. Pursuant to cl 6.21C(2) of the SLEP 2012, which deals with design excellence requirements, on the basis of the advice by the Parties’ town planning and urban design experts, I am satisfied that the amended design exhibits design excellence including through the proposed massing & bulk, materials and finishes, and environmental impacts, and that it responds sympathetically to the streetscape and will not cause unacceptable adverse impacts to the residential amenity of adjoining properties.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I have considered whether the site is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the Statement of Environmental Effects that accompanied the DA, I accept that the site has been used as residential purposes for a substantial period of time and is unlikely to be contaminated, and is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies as the DA was lodged after the Sustainable Buildings SEPP came into operation.

15. Pursuant to s 2.1(5) of the Sustainable Buildings SEPP, the amended application is accompanied by a BASIX certificate (A1770205 dated 24 October 2024), prepared by Mrs Anerys De Los Angeles McMahon-Ford. Conditions of consent (conditions 8 & 34) require compliance with the commitments in accordance with the BASIX certificate.

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. Section 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the proposed development as the development is for the purpose of residential accommodation that is on land adjacent to Botany Road, and that is likely to be adversely affected by road noise or vibration.

17. I am satisfied that appropriate measures will be taken to ensure the LAeq levels specified in Section 2.120 (bedrooms 35 dB(A) between 10pm and 7am; anywhere else excluding garage, kitchen, bathroom or hallway 40 dB(A) at any time) on the basis of the Road Traffic Noise Intrusion Assessment report (Acoustic Dynamics 19 September 2024) and condition 15 of the proposed conditions of consent which sets out the performance parameters to be implemented prior to the issue of construction and/or occupation certificates.

Other considerations

18. I note the advice of the parties that owner’s consent for the application has been provided, and that the DA was publicly exhibited from 17 June 2024 to 2 July 2024, and that one written submission was received.

19. I am satisfied that the submission has been taken into consideration by the amended documents. I note that the extent of excavation has been addressed through the submission of the “Geotechnical Investigation Report” (Alliance Geotechnical & Environmental Solutions Pty Ltd, 18 September 2024) and the Construction Methodology Report (Ross Engineers, 25 September 2025), and that conditions of consent have been incorporated regarding a Construction Environmental Management Plan (condition 9), Construction Traffic Management Plan (condition 10) and a Dilapidation Report (condition 20).

20. I am further satisfied that the amended architectural plans have reduced the extent of glazing to the eastern façade of the proposed studio over the garage, and have introduced privacy screening to the western façade of the upper floor level of the primary dwelling, reducing privacy and overlooking impacts.

Conclusion

21. I have considered the submissions made by the parties in the Jurisdictional Statement submitted to the Court on 28 October 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

22. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

23. 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.

Notes

24. The Court notes that:

1. The Respondent, The Council of the City of Sydney, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application D/2024/443 to rely on the documents as outlined in Annexure A (Amended Application).

2. The Applicant filed the plans and documents listed in Annexure A on 28 October 2024.

Orders

25. The orders of the Court are:

1. The appeal is upheld.

2. Development Application D/2024/443 as amended, for alterations and additions to an existing building including the construction of a basement, studio on top of an existing garage, the addition of solar panels and a rainwater tank at 13 Princess Avenue, Rosebery NSW 2018 is determined by the grant of consent subject to the conditions in Annexure A.

I certify that this and the preceding 5 pages are a true copy of my reasons for judgment.

Niall Macken

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 22 November 2024