O'Neill v Shoalhaven City Council

[2023] NSWLEC 1415

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Neill v Shoalhaven City Council [2023] NSWLEC 1415

Hearing dates:

Conciliation conference held on 13 July 2023

Date of orders:

01 August 2023

Decision date:

01 August 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA22/2197, as amended, seeking construction of a dwelling with landscaping and associated engineering works on Lot 33 Section 3 Deposited Plan (DP) 22379, also known as 13 Ridge Avenue, Sussex Inlet is determined by grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a new dwelling – conciliation conference 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 2021, ss 23, 37

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

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 2.10, 2.12, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

Shoalhaven Local Environmental Plan 2014 cll 2.3, 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.6, 7.8

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

Peter O’Neill (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor)(Applicant)
A Menyhart (Solicitor)(Respondent)

Solicitors:
Hones Lawyers (Applicant)
Ball Lawyers (Respondent)

File Number(s):

2023/42525

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application DA22/2197 by the Shoalhaven City Council (the Council) seeking construction of a dwelling with landscaping and associated engineering works on Lot 33 Section 3 Deposited Plan 22379, also known as 13 Ridge Avenue, Sussex Inlet (hereafter the site).

Background

2. Development Application DA22/2197 (the application) was lodged with Council on 27 October 2022, with one written submission received during the notification period.

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

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person.

5. The Council agreed for the applicant to amend the plans and documents that support the application, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application 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 resolved, and that the issues raised by the adjoining resident have been considered.

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 Development Application DA22/2197, subject to conditions in Annexure A.

Jurisdictional prerequisites

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

1. Shoalhaven Local Environmental Plan 2014 (SLEP):

1. Pursuant to cl 2.3 of the SLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone.

2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the SLEP. Specifically assessed are the following cll: 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.6 and 7.8.

3. The contentions relating to the height and earthworks provisions, relevant to cll 4.3 and 7.2 respectively, were resolved by amended plans that demonstrate the relationship of the proposed building form and retaining walls to the existing and proposed landform.

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

1. A BASIX Certificate (1342836S) issued on 25 September 2022 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

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

1. The site is located on land mapped within the proximity area for coastal wetlands and coastal environment area, engaging ss 2.8 and 2.10 of the SEPP Resilience, respectively. The site is located with a coastal zone, pursuant to s 2.12. The amended application is supported by an Environmental Assessment of Significance report, prepared by Bowantz Bushfire & Environmental, dated 14 June 2023. The ecology and planning experts have joint conferenced and assess there is no adverse environmental impact resulting from the proposed development. There is no assessed impact to the hydrology, biophysical or ecological features of the nearby wetland, which is located over 70 m from the site. There is no assessed change to the coastal hazards on the land.

2. The site has historically been left vacant and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience. The conditions of consent address any unexpected finds.

4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The zoning and location of the site engages Chapter 2 of the SEPP Biodiversity, relevant for consideration of the application. The supporting documents to the application, namely the ecological assessments and evidence of the experts, results in the preservation of select native trees on the site and in the road reserve, and sufficient landscaping.

5. Shoalhaven Development Control Plan 2014 (SDCP):

1. The relevant requirements of the SDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the SDCP, and the submission received has been considered in the Council’s merit assessment of the application, and where appropriate, issues were addressed by amendments to the application and conditions of consent.

2. The Council agrees that the contentions that relate to the SDCP are resolved by amendments to the application and provision of further supporting documents that support the application. The issue raised by the adjoining resident as it relates to privacy has been addressed by the proposed building design and that the site will have access through the road reserve.

9. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application. The proposed access to the site is through a Council road reserve, which is agreed as reasonable, and subject to relevant approvals, as described in the conditions of consent.

Grant of consent

10. Based on the amended plans and supporting documents to the application, 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 Development Application DA22/2197 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

13. As the parties' agreement 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. The Shoalhaven City Council, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant to amend Development Application DA22/2197, as described below:

Plan Number	Revision Number	Plant Title	Drawn by	Date of Plan
DA.00	C	Cover Sheet	Archology	April 2023
DA.01	C	Site Analysis	Archology	April 2023
DA.02	C	Footing Plan	Archology	April 2023
DA.03	C	Ground Floor Plan	Archology	April 2023
DA.04	C	First Floor Plan	Archology	April 2023
DA.05	C	Second Floor Plan	Archology	April 2023
DA.06	C	Roof Plan	Archology	April 2023
DA.07	C	Elevations – South & North	Archology	April 2023
DA.08	C	Elevation – East	Archology	April 2023
DA.09	C	Elevation – West	Archology	April 2023
DA.10	C	Section AA	Archology	April 2023
DA.11	C	Section BB	Archology	April 2023
DA.12	C	Sections CC DD	Archology	April 2023
DA.13	C	Section EE FF	Archology	April 2023
DA.14	C	Section GG	Archology	April 2023
DA.15	C	FSR Calculations	Archology	April 2023
DA.16	C	Landscape Concept Plan	Archology	April 2023
DA.17	C	Landscape Calculations	Archology	April 2023
DA.18	C	General Specifications	Archology	April 2023
DA.19	C	Construction Notes for all BALs	Archology	April 2023
DA.20	C	Constructions Notes for BAL-FZ	Archology	April 2023
DA.21	C	Constructions Notes for BAL-FZ	Archology	April 2023
DA.22	D	Driveway Plan & Longitudinal Section	Archology	June 2023

2. The applicant has filed the plans and material that amend the Development Application DA22/2197 with the Court on 13 July 2023. 

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA22/2197, as amended, seeking construction of a dwelling with landscaping and associated engineering works on Lot 33 Section 3 Deposited Plan (DP) 22379, also known as 13 Ridge Avenue, Sussex Inlet is determined by grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 01 August 2023