Nguyen v City of Canada Bay Council

[2021] NSWLEC 1673

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nguyen v City of Canada Bay Council [2021] NSWLEC 1673

Hearing dates:

Conciliation conference on 5, 15, 22 and 26 October 2021

Date of orders:

8 November 2021

Decision date:

08 November 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The class 1 application is upheld;

(2) Conditional development consent is granted to development application no. 2020/0020 (as amended) lodged with the Respondent on 30 January 2020 for the demolition of an existing dwelling; construction of a 3 storey dwelling with a swimming pool; and the refurbishment of an existing outbuilding at Lot 3, DP 562366 (No. 23) Preston Avenue, Five Dock, NSW 2046 subject to the conditions set out in Annexure 'A'.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cl 2.3, 4.6, 5.21, 6.1, 6.2, 6.3

Coastal Management Act 2016, s 5, Schedule 3

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Coastal Management) 2018, cl 4, 13, 14

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 20 – 27, 29, 63

Texts Cited:

Parramatta River Estuary Coastal Zone Management Plan

Category:

Principal judgment

Parties:

Roland Thanh Dam Nguyen (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
McCabes Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/066886

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application -residential DA 2020/0020 seeking development consent for the demolition of existing structures and the construction of a new 3 storey dwelling with spa and related landscaping (the Proposed Development) at 23 Preston Avenue, Five Dock NSW 2046 legally described as Lot 3 in DP 562366 (the Site)

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 5, 15, 22 and 26 October 2021. I have 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the provisions of the following instruments:

1. Canada Bay Local Environmental Plan 2013 (CBLEP);

2. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;

3. State Environmental Planning Policy No 55 – Remediation of Land; and

4. State Environmental Planning Policy (Coastal Management) 2018

6. The parties explained how the jurisdictional prerequisites have been satisfied and I summarise their explanation below.

7. As stated under the CBLEP, the subject site is located within Zone R2 – Low Density Residential (R2 Zone) which list two objectives of which a consent authority must have regard when determining a development application in respect of land within the zone (cl 2.3 CBLEP). The parties have considered these objectives and have concluded that the DA, as amended, is consistent with the objectives of the Zone which are as follows:

•     To provide for the housing needs of the community within a low density residential environment.

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

8. The requisite landowner's consent pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) allows an application to be made with the consent of the owner of the Land. This requirement of the Regulation was satisfied to enable the DA to be made, evaluated and determined.

9. The Proposed Development DA is subject to evaluation under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP). Clause 20 requires matters identified in Part 3, Division 2 of the SREP to be taken into account before consent is granted.

10. Matters identified in cll 21 – 24 and cll 26-27 were taken into account by the Council when originally assessing the development application and found to be satisfactory Assessment Report (pp 650 and 651 of the Respondent’s Bundle).

11. Clause 25 requires the consent authority to take into account matters relating to foreshore and waterways scenic quality. The issues raised in the Council’s Statement of Facts and Contentions and the subsequent amendment of the design of the development shows that these matters have been taken into account.

12. As the Site is located within the Foreshores and Waterways Area Boundary the development was required to be referred to the Advisory Committee. The architectural plans and statement of environmental effects for the development application were referred to the Advisory Committee on 7 June 2021. No response was received (see p 691 of the Respondent’s Bundle). As more than 30 days has passed since the date of this referral, the Court is not required to take into account the view of the Advisory Committee (cl 29(1)(b) of the SREP).

13. Part of the Site is located within the wetlands protection area of SREP. Consequently, cl 63 of the SREP requires the consideration of a number of environmental factors before development consent can be granted which involve how the Development will respond to these factors. These factors have been considered and reported on by the relevant expert witnesses which conclude that the Development will not have any adverse effects on the locality or the aquatic environment.

14. The Development Application has been assessed under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). Under cl 7 of SEPP 55 the Respondent is satisfied that the land is suitable for use. At Tab 3 (Folio 29) of the Class 1 Application and in the Council Assessment report (p 649 of the Respondent’s Bundle), the relevant matters under SEPP 55 have been considered and found to be satisfactory.

15. The site is mapped as being within the Coastal Environment Area and Coastal Use Area pursuant to the State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP). The Site is consequently in the coastal zone pursuant to s 5 of the Coastal Management Act 2016. The development controls at cll 13 and 14 of the CM SEPP do not apply, as the Site is within the Foreshores and Waterways Area pursuant to the SREP (see cll 13(3) and 14(2)). Development consent must not be granted on land within the coastal zone unless the consent authority:

1. is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land (cl 15),

2. has taken into consideration the relevant provisions of any certified coastal management program (CMP) that applies to the land (cl 16).

16. The Court can be satisfied that the DA is not likely to cause an increased risk of coastal hazards on the Site or other land, as the existing sea wall to Hen and Chicken Bay will be maintained, and the dwelling is setback from that area. The rear yard will be used as a private open space area with landscaping. There will be no works to the existing sea wall or any foreshore vegetation that will cause increased risk of coastal hazards.

17. The Parramatta River Estuary Coastal Zone Management Plan (CZMP) (gazetted on 1 July 2016) applies to the local government area of Canada Bay, and is considered a certified coastal management program, pursuant to cl 4 of the CM SEPP and cl 4, Schedule 3 of the Coastal Management Act 2016. Council has considered the CZMP, to the extent it is relevant.

18. There are a number of provisions of the CBLEP which need to be satisfied prior to the granting of consent and these are as follows:

1. In relation to the flood planning requirements of cl 5.21 (formerly cl 6.3) of the CBLEP these requirements have been addressed by the relevant expert witnesses. Appropriate conditions of development consent have been imposed to ensure the Respondent's Flood Planning Levels have been complied with in relation to habitable rooms within the dwelling. The Court will find that the requirements of cl 5.21 have been satisfied.

2. Contention 2 of the Respondent’s statement of facts and contentions raised the contravention of the Floor Space Ratio (FSR) development standard in the CBLEP and the failure to provide a cl 4.6 written request to justify the contravention of this development standard. The DA has been amended so that the gross floor area and FSR is now compliant with the standard (see drawing AR.DA 6001 Rev F).

3. Clause 6.1 of the CBLEP requires development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. With respect to the Development Application the subject land is mapped as Class 5 land. Clause 6.1 requires development consent for the carrying out of works on class 5 land only if such works are within 500m of adjacent class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1m AHD on adjacent class 1, 2, 3 or 4 land. The subject land is within 500m adjacent land that is class 2 land. At Tab 11 (Folios 114 to 161 inclusive) of the Class 1 Application an acid sulfate soil assessment and management plan has been prepared to address the requirements of cl  6.1 of the CBLEP. Appropriate conditions have been imposed on the development consent to ensure the management plan is implemented.

4. The Court will be satisfied that the requisite matters to be considered under cl 6.2 of the CBLEP with respect to earthworks and have been met at Tab 12 (Folios 162 to 188 inclusive) of the Class 1 Application.

5. The northern portion of the Site is located within the map for environmentally sensitive land. Clause 6.3(4) of the CBLEP requires the consent authority, prior to the granting of development consent, to form an opinion of satisfaction that—

(a)  the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)  if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

6. The parties refer the Court to the Assessment Reports found at Tab 12 of the Respondent’s bundle commencing at folio 652 to support the finding of satisfaction that cl 6.3 has been adequately addressed.

19. The DA was appropriately notified by the Respondent pursuant to the EPA Act. At the end of the notification period, the Respondent received submissions which have been duly considered and reported on.

20. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I refer to and adopt the reasons given by the parties as I have summarised above.

21. 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.

22. The Court notes:

1. The City of Canada Bay Council as the relevant consent authority for the purposes of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) agrees to the Applicant amending the development application no. 2020/0020 (amended DA) as follows;

Reference/Dwg No	Title/Description	Prepared By	Date/s
AR.DA.0000 (Revision F)	Cover sheet	TKD Architects	08.10.2021
AR.DA.1101 (Revision E)	Site & roof plan	TKD Architects	08.10.2021
AR.DA.2001 (Revision F)	Ground floor plan	TKD Architects	08.10.2021
AR.DA.2001 (Revision E)	First floor plan	TKD Architects	08.10.2021
AR.DA.2001 (Revision E)	Second floor plan	TKD Architects	08.10.2021
AR.DA.3001 (Revision D)	North and south elevation	TKD Architects	08.10.2021
AR.DA.3002 (Revision D)	East and west elevation	TKD Architects	08.10.2021
AR.DA.3003 (Revision E)	Courtyard elevations	TKD Architects	08.10.2021
AR.DA.3004 (Revision C)	Front elevations	TKD Architects	08.10.2021
AR.DA.3101 (Revision E)	Sections	TKD Architects	08.10.2021
AR.DA.8001 (Revision B)	Materials Pallette/Colour Samples	TKD Architects	08.10.2021
AR.DA.8302 (Revision C)	Terrace section	TKD Architects	08.10.2021
Project No. 1563 Drawing No. L100 (Revision E)	Landscape Plan	Spirit Level Designs P/L	13.10.2021
Certificate No. 1068457S_02	BASIX Certificate	GAT & Associates	15.10.2021
Certificate No. 0006675870	NAThers Certificate	15.10.2021
R02	Flood Planning Statement	ACOR Consultants P/L	15.10.2021
SY180824 – C1.01 (Revision C)	Cover Sheet, Legends and Notes	ACOR Consultants P/L	15.10.2021
SY180824 – C1.05 (Revision C)	Details – Sheet 1	ACOR Consultants P/L	15.10.2021
SY180824 – C1.06 (Revision B)	Details – Sheet 2	ACOR Consultants P/L	15.10.2021
SY180824 – C3.00 (Revision C)	Overall Site Plan and Service	ACOR Consultants P/L	15.10.2021
SY180824 – C3.01 (Revision D)	Civil Works Plan	ACOR Consultants P/L	15.10.2021
SY180824 – C3.02 (Revision D)	Longitudinal Sections – Sheet 1	ACOR Consultants P/L	15.10.2021
SY180824 – C3.03 (Revision D)	Longitudinal Sections – Sheet 2	ACOR Consultants P/L	15.10.2021
SY180824 – C3.15 (Revision C)	WSUD Catchment Plan	ACOR Consultants P/L	15.10.2021
SY180824 – C5.01 (Revision D)	Soil Erosion and Sediment Control Plan	ACOR Consultants P/L	15.10.2021
R02	Flood Planning Statement	ACOR Consultants P/L	15.10.2021

2. The amended DA has been uploaded to the NSW Planning Portal on 20 October 2021; and

3. The Applicant has subsequently filed the amended DA with the Court on 26 October 2021.

Orders

23. The Court orders:

1. The class 1 application is upheld;

2. Conditional development consent is granted to development application no. 2020/0020 (as amended) lodged with the Respondent on 30 January 2020 for the demolition of an existing dwelling; construction of a 3 storey dwelling with a swimming pool; and the refurbishment of an existing outbuilding at Lot 3, DP 562366 (No. 23) Preston Avenue, Five Dock, NSW 2046 subject to the conditions set out in Annexure 'A'.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (370746, pdf)

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Decision last updated: 08 November 2021