Munoz v City of Canada Bay Council

[2021] NSWLEC 1170

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Munoz v City of Canada Bay Council [2021] NSWLEC 1170

Hearing dates:

Conciliation conference on 1 March 2021

Date of orders:

08 April 2021

Decision date:

08 April 2021

Jurisdiction:

Class 1

Before:

Rappoport AC

Decision:

The Court orders that:

(1)   The Applicants are granted leave to amend development application DA 2020/0027 and to rely upon the amend plans and documents listed in Condition 1 of Annexure “A” hereto.

(2)   The appeal is upheld.

(3)   Development Application DA2020/0027 for the internal alterations to the existing dwelling, the construction of a new two storey addition at the rear, new basement level car parking, living space, utility rooms, conservation works, new and relocated swimming pool, new and relocated tennis court and associated site works and landscaping is approved subject to the consolidated conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation – heritage conservation area – alterations and additions – conciliation conference – agreement between parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013 cll 4.3, 5.10

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979 s 34

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

Texts Cited:

Australian Standard AS 2021:2015

Australian Standard AS 1668.2-2012

Category:

Principal judgment

Parties:

Alessandra Munoz (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/230259

Publication restriction:

No

Judgment

1. COMMISSIONER: Alessandra Munoz is the Applicant and is the owner of a two-storey masonry brick building at 8 Wrights Road, Drummoyne NSW 2047 to which consent was refused by the Canada Bay Council (the Respondent) in response to Development Application DA/2020/0027 for internal alterations to the existing dwelling, the construction of a new two-storey addition at the rear, new basement level car parking, living space, utility rooms, conservation works, new and relocated swimming pool, new and relocated tennis court, and associated site works and landscaping. The appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), is regarding two conditions of consent.

2. The appeal was listed for mandatory conciliation on 1 March 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. There was no onsite view since the parties had already reached an agreement based on amended plans. The parties advised me they had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. The terms of the agreement required the preparation of amended drawings.

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 1 March 2021.

5. 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 Applicants, 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.

6. 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 to allow the Court to make the agreed orders at [11].

7. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed as follows:

1. The subject site is zoned R3 Medium Density Residential under the Canada Bay Local Environmental Plan 2013 (CBLEP). The proposed development is permissible with development consent in the R3 zone.

2. The proposed development complies with the 8.5m height of buildings standard imposed for the subject site on the Height of Buildings Map which is endorsed by cl 4.3(2) of the CBLEP.

3. As amended, the proposed development has a floor space ratio (FSR) of 0.49:1 and therefore complies with the FSR standard of 0.5:1 imposed for the subject site by the FSR Map which is endorsed by cl 4.4(2) of the CBLEP.

4. The subject site is a local heritage item listed as Item 512 under Schedule 5 of the CBLEP and is within the Drummoyne Park Conservation Area identified in that Schedule. The proposed development is therefore subject to cl 5.10(4) of the CBLEP. The Applicant has demonstrated through the design of the proposal and the schedule of conservation works that the proposed development will not adversely impact the heritage significance of the heritage item or the heritage conservation area, and proposes various conservation works which will improve the item’s continued conservation.

5. The site is mapped as Class 5 land on the Acid Sulphate Soils Map referred to in cl 6.1(2) of the CBLEP and is within 500m of adjacent Class 2 land that is below 5 metres Australian Height Datum (AHD). The Applicant has demonstrated by a letter from David England dated 1 March 2021 that the development is not likely to lower the water table on the adjacent Class 2 land below 1m AHD and therefore does not require development consent under cl 6.1(2) of the CBLEP. In any event, the Applicant has demonstrated by David England's preliminary assessment that an acid sulphate soils management plan is not required as the proposed development is not below RL 5 AHD and will not lower the water table on adjacent Class 2 land in compliance with c 6.1(3) of the CBLEP.

6. CBLEP (Amendment No 18) commenced operation on 26 February 2021 and did not contain a savings or transitional provision. Clause 6.13 of the CBLEP applies to the proposed development as:

1. the subject site is located in an Australian Noise Exposure Forecast (ANEF) contour of 20 or greater (cl 6.13(2)(a));

2. the proposed development is likely to be adversely affected by aircraft noise (cl 6.13(2)(b)); and

3. the proposed development is a substantial alteration or addition to an existing building (cl 6.13(c)(ii)).

7. The Applicant has provided a letter from Steven Cooper dated 28 February 2021 which confirms that the proposed development, subject to a condition requiring the windows of the rear addition to be appropriately glazed, will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sounds Levels for Determination of Aircraft Noise Reduction) in Australian Standard AS 2021:2015. The letter notes that this requirement will in turn require mechanical ventilation to satisfy Australian Standard AS 1668.2-2012. Based on the letter and agreed Condition (10), the parties submit that the jurisdictional requirement of the new cl 6.13 of the CBLEP is satisfied.

8. The Applicant has provided a BASIX Certificate in compliance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

8. Finally, I am satisfied that the application is accompanied by a BASIX Certificate for the development at 8 Wrights Road, Drummoyne (Certificate No. 1034646S, stamped by the Court on 6 August 2020), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

9. 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.

10. 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.

11. The Court orders that:

1. The Applicants are granted leave to amend development application DA 2020/0027 and to rely upon the amend plans and documents listed in Condition 1 of Annexure “A” hereto.

2. The appeal is upheld.

3. Development Application DA2020/0027 for the internal alterations to the existing dwelling, the construction of a new two storey addition at the rear, new basement level car parking, living space, utility rooms, conservation works, new and relocated swimming pool, new and relocated tennis court and associated site works and landscaping is approved subject to the consolidated conditions at Annexure “A”.

…………………………

P Rappoport

Acting Commissioner of the Court

Annexure A (410287, pdf)

**********

Amendments

21 April 2021 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, by the request of the Applicant with the consent of the Respondent and on the Court’s own motion, amend Annexure A paragraph (c) under the heading ‘Terminology’ to read:

“(c) Any reference to the “site”, means the land known as 8 Wrights Road, Drummoyne.”

Decision last updated: 21 April 2021