Pagano & Pagano v Lane Cove Municipal Council
[2025] NSWLEC 1374
•27 May 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: Pagano & Pagano v Lane Cove Municipal Council [2025] NSWLEC 1374 Hearing dates: Conciliation Conference on 22 and 23 April 2025 Date of orders: 27 May 2025 Decision date: 27 May 2025 Jurisdiction: Class 1 Before: Miller AC Decision: The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. 18/2024, as amended, for the demolition of a two-storey dwelling house with a detached garage and the construction of two-storey dwelling house with in-ground swimming pool, rooftop terrace and a detached pool house at the rear on land known as 1 Kenneth Street, Longueville (Lot 1 in Deposited Plan 8312) is determined by the grant of consent, subject to the conditions contained in Annexure A.
Catchwords: APPEAL – development application –detached dwelling house with rooftop terrace and swimming pool – conciliation conference – agreement reached – orders made
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38, Sch 7
State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Ch 2 6, ss 2.6, 6.6, 6.7, 6.8, 6.9, 6.10
Lane Cove Local Environmental Plan 2009, cll 2.3, 2.7, 4.3, 4.4, 6.1A
Category: Principal judgment Parties: John Pagano (First Applicant)
Rosanna Pagano (Second Applicant)
Lane Cove Municipal Council (Respondent)Representation: Counsel:
Solicitors:
R White (Applicant)
A Seton (Solicitor) (Respondent)
Gells Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/383551 Publication restriction: Nil
JUDGMENT
Introduction
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COMMMISSIONER: 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 refusal of Development Application No. 18/2024 for the demolition of a two-storey dwelling house with a detached garage and the construction of a new two-storey dwelling house with a basement garage, in-ground swimming pool, rooftop terrace and a detached pool house at the rear on land known as 1 Kenneth Street, Longueville (Lot 1 in Deposited Plan 8312) by Lane Cove Municipal Council.
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The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 22 and 23 April 2025.
Outcome
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At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.
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The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert planning report and the plans that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
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The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 23 April 2025 and are listed under Condition 1 of the conditions of consent at Annexure A.
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The amendments made to the proposal during the conciliation process which gave rise to the agreement (and which resolved the Respondent’s contentions) primarily related to: (1) the reduction in the size of and increased front setback of the rooftop terrace; (2) deletion of the proposed basement, (3) retention of gas connection; and (4) changes to the pool fence to comply with relevant standards.
Jurisdictional matters
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As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
State Environmental Planning Policy (Sustainable Buildings) 2022
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The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. An amended BASIX Certificate has been submitted prepared by Chen Weng (Certificate Number 179646S dated 23 April 2025) as required by s 27 of the EPA Reg.
State Environmental Planning Policy (Resilience and Hazards) 2021
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Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
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Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas. The proposal seeks development consent for tree removal and is accompanied by an Arboricultural Impact Assessment Report (McArdle Arboricultural Consultancy, 22 April 2024). As consent is sought the requirements of s 2.6 are satisfied. Further the parties agree that the proposed tree removal is acceptable subject to the proposed landscape planting.
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The site is located within the Sydney Harbour Catchment in accordance with the BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.
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I am satisfied, on the basis of the agreement of the parties, the concept stormwater drainage plans and the conditions of consent that the effect of the proposed development on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal will not have any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; will not impact land abutting a natural waterbody or the sedimentation of a natural waterbody; and does not affect any wetlands (s 6.7). The proposal is also very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); does not affect public access to and from natural waterbodies (s 6.9); and is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).
Lane Cove Local Environmental Plan 2009
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Development for the purposes of a residential dwelling is permissible in the R2 Low Density Residential zone in which the site is located pursuant to Lane Cove Local Environmental Plan 2009 (LCLEP).
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The development has regard to the objectives of the R2 Low Density Residential zone as required by cl 2.3 of LCLEP including notably “to provide for the housing needs of the community within a low density environment”, and “to retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area”.
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As required by cl 2.7 of LCLEP consent is sought as part of the subject application for the proposed demolition of existing structures on site.
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The proposed development complies with the maximum height of building development standard set out in cl 4.3 of LCLEP which provides for a maximum height of 9.5m. The proposal has a maximum height less than 9.5m as shown on the plans.
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The proposed development complies with the floor space ratio development standard set out in cl 4.4 of LCLEP which provides for a maximum Floor Space Ratio (FSR) of 0.5:1. The parties advise that the proposal has a floor space ratio of less than 0.5:1.
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I am satisfied on the basis of the parties’ agreement and the recommended conditions of consent that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.1A of LCLEP.
Other Matters
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The development application is made with the written consent of the owner of the site in accordance with s 23 of the EPA Reg.
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The Respondent notified the original development application between 15 and 31 March 2024. No submissions were received.
Conclusion
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Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
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In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
Orders
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The orders of the Court are:
The appeal is upheld.
Development Application No. 18/2024, as amended, for the demolition of a two-storey dwelling house with a detached garage and the construction of two-storey dwelling house with in-ground swimming pool, rooftop terrace and a detached pool house at the rear on land known as 1 Kenneth Street, Longueville (Lot 1 in Deposited Plan 8312) is determined by the grant of consent, subject to the conditions contained in Annexure A.
H Miller
Acting Commissioner of the Court
Annexure A (243 KB, pdf)
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Decision last updated: 27 May 2025
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