Penna v City of Canada Bay Council

[2023] NSWLEC 1765

Land and Environment Court

New South Wales

Medium Neutral Citation:

Penna v City of Canada Bay Council [2023] NSWLEC 1765

Hearing dates:

Conciliation Conference on 27 July and 6 December 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA No 2021/0132, as amended, for major alterations and additions to an existing dwelling house at 8 Drummoyne Avenue, Drummoyne NSW, being Lot 1 in DP1266285, subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – dwelling house – heritage issues -waterfront land – deferred commencement condition – conciliation conference – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.3, 6.4, 6.13, Sch 5, Pt 2

Environmental Planning and Assessment Act 1979, ss 4.16, 4.20, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Chs 6-12, s 10.14

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy Amendment (Water Catchments) 2022

Texts Cited:

Standards Australia, AS 2021:2015, Acoustics—Aircraft Noise Intrusion—Building Siting and Construction

Category:

Principal judgment

Parties:

Barbara Penna (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/62887

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by the City of Canada Bay Council (the Council) of DA2021/0132 (the Development Application) for major alterations and additions to an existing dwelling house at 8 Drummoyne Avenue, Drummoyne, NSW, being Lot 1 in DP1266285 (the Site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached an in-principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. The Applicant’s proposed works to a substantial 1890s Federation style dwelling house located on waterfront land in a heritage conservation area, created some complex heritage and planning issues which took some time to be resolved and necessitated adjournments for the heritage experts to confer and the parties to reach a signed s 34 Agreement and agreed conditions. The decision involved the Council approving an application to amend the Applicant’s plans pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The agreed position is for the Court to uphold the Class 1 Appeal and grant development consent to DA2021/0132, as amended, with conditions.

4. The Council required, and the Applicant accepted, a deferred commencement condition under s 4.16(3) of the EPA Act. The development consent does not become operative until the Applicant has satisfied the requirements listed in Schedule ‘A’ of the agreed conditions of consent as set out in Annexure A to this judgment.

5. Section 34(3) of the LEC Act requires me to 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.

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an Agreed Note on Jurisdiction Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

7. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters that apply.

Canada Bay Local Environmental Plan 2013 (the LEP)

8. The land is zoned ‘R3 Medium Density Residential’ under the LEP and the current permissible use as ‘residential accommodation’ is not changed by the development. The proposed development is consistence with the objectives of the ‘R3 Medium Density Residential’.

Clause 4.6(4) - Exceptions to development standards

9. The proposed development complies with the maximum floor space ratio of 0.5:1. This is confirmed in the amended architectural drawings prepared by Dickson Rothschild (in the amended application materials), particularly drawing DA-0-901 revision R dated 27 November 2023.

10. The Applicant also relies on a written request under cl 4.6 of the LEP to vary the development standard for the height of buildings (as would otherwise apply under cl 4.3(2) of the LEP), as set out in ‘Clause 4.6 Request for Variation to Height of Buildings Development Standard’ dated 29 November 2023.

11. The written request meets the requirements of cl 4.6(3) in that it justifies the contravention of the development standards by demonstrating:

1. that compliance with the development standards is unreasonable or unnecessary in the circumstances of the case; and

2. that there are sufficient environmental planning grounds to justify contravening the development standards, and

3. the proposed development is in the public interest because it is consistent with the objectives of the particular standards and the zone objectives.

12. The Council agrees as part of the s 34 Agreement that the request to vary the height of buildings standard be upheld. The Court accepts and notes the parties’ analysis and decision.

Clause 5.10(4) - Heritage conservation

13. The site is identified as ‘Conservation Area – General’ under the LEP’s ‘Heritage Map’ and is described as ‘Drummoyne Avenue East Conservation Area’ under Pt 2 of Sch 5 of the LEP.

14. A ‘Heritage Impact Statement’ has been prepared by Weir Phillips Heritage and Planning and the parties’ heritage experts participated in a number of joint conferences concerning the Applicant’s proposal in reaching an agreed position acceptable to both parties.

15. The proposed development conserves the heritage significance of the Heritage Conservation Area, including associated fabric, settings and views from and to the Parramatta River front.

16. The Court accepts the opinions of the parties’ heritage experts and is satisfied that the parties have satisfactorily considered the effect of the proposed development on the heritage significance of the 1890s dwelling house located in the “Drummoyne Avenue East Conservation Area” setting.

Clause 6.3(4) - Environmentally sensitive land

17. Part of the Site is identified as ‘Environmentally Sensitive Land’ on the LEP’s ‘Environmentally Sensitive Land Map’.

18. The proposed development is designed, sited and will be managed to avoid any significant adverse environmental impact.

Clause 6.4(3) - Limited development on foreshore area

19. Part of the Site is identified as ‘foreshore area’ on the LEP’s ‘Foreshore Building Line Map’ and a ‘Resilience Assessment to Sea Level Rise and Change of Flood Patterns as a Result of Climate Change’ has been prepared by HDC Planning. This document is dated 3 July 2023 and forms part of the amended application materials (the climate change assessment statement).

20. The parties agree that the proposed development:

1. will contribute to achieving the objectives for the ‘R3 Medium Density Residential’ zone;

2. will ensure the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area;

3. will not cause environmental harm such as—

1. pollution or siltation of the waterway;

2. an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats; or

3. an adverse effect on drainage patterns;

4. will not cause congestion or generate conflict between people using open space areas or the waterway;

5. provide opportunities for continuous public access along the foreshore and to the waterway will not be compromised;

6. maintain any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land;

7. will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and

8. considers the sea level rise or change of flooding patterns as a result of climate change. This is confirmed in paragraphs 16-17 and section 3 of the climate change assessment statement, section 6 (page 45) of the Statement of Environmental Effect and pages 2-3 of the planning letter.

Clause 6.13(3) - Development in areas subject to aircraft noise

21. An ‘Aircraft Noise Intrusion Assessment’ was prepared by Acoustic Logic and formed part of the Class 1 application.

22. The proposed development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015, Acoustics—Aircraft Noise Intrusion—Building Siting and Construction.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

23. Chapter 10 of the Biodiversity and Conservation SEPP (as in force on 20 November 2022) applies to the land.

24. The historical version of Chs 6-12 of the Biodiversity and Conservation SEPP applies. By virtue of the savings provision in s 6.65 of the current Biodiversity and Conservation SEPP, Chs 6-12 in force immediately before their repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022 continue to apply to the proposed development.

25. This means that Chs 6-12 of the Biodiversity and Conservation SEPP as at 20 November 2022 apply to the proposed development instead of Chs 6-12 of the current Biodiversity and Conservation SEPP.

Clause 10.14(2) - Zoning objectives

26. A small part of the Site is identified ‘zone W7- Scenic Waters: Casual Use’ under the Biodiversity and Conservation SEPP’s ‘Foreshore and Waterways Area – Zone Map’.

27. The parties have set out in the Statement details as to why the proposed development meets the W7 zone objectives and agree that the proposed development is consistent with the aims of Ch 10 of the Biodiversity and Conservation SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP 2021)

28. The parties have considered jurisdictional requirements relevant to the proposed development and the subject land by the application of the Resilience and Hazards SEPP 2021. The Court accepts the parties’ analysis set out in the Statement that no jurisdictional impediments arise and that the Site is suitable for the purpose for which the development is proposed to be carried out.

Conclusion

29. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

30. 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. 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.

Notations

31. The Court notes that:

1. the Applicant's written request under clause 4.6 of the Canada Bay Local Environmental Plan 2013 (LEP) seeking a variation of the development standard for height of buildings set out in clause 4.3(2) of the LEP is upheld;

2. the Respondent has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application No. DA2021/0132 in the following respects:

1. the inclusion of architectural drawings prepared by Dickson Rothschild in replacement of corresponding earlier drawings as follows:

Drawing No.	Rev.	Title	Date
DA-0-001	Q	Cover Sheet	27 November 2023
DA-0-101	F	Site Location & Analysis Plan	1 November 2023
DA-0-102	F	Streetscape Analysis	1 November 2023
DA-0-111	F	Existing Site Photos	1 November 2023
DA-0-112	F	Existing Site Photos	1 November 2023
DA-0-121	G	Survey Plan	1 November 2023
DA-0-122	L	Site Plan & Site Analysis	27 November 2023
DA-0-151	J	Demolition Plan – Site	27 November 2023
DA-0-152	J	Detail Demolition Works	27 November 2023
DA-0-211	G	Existing Floor Plan – Ground	27 November 2023
DA-0-212	G	Existing Floor Plan – Level 1	27 November 2023
DA-0-213	G	Existing Floor Plan – Roof	27 November 2023
DA-0-221	R	Proposed Basement Floor Plan	27 November 2023
DA-0-222	S	Proposed Ground Floor Plan	27 November 2023
DA-0-223	S	Proposed Level 1 Floor Plan	27 November 2023
DA-0-224	S	Proposed Roof Plan	27 November 2023
DA-0301	P	Proposed North Elevation	27 November 2023
DA-0-302	J	Proposed South Elevation	27 November 2023
DA-0-303	H	Proposed East Elevation	27 November 2023
DA-0-304	H	Proposed West Elevation	27 November 2023
DA-0-305	M	Street Elevation – Proposed & Existing	27 November 2023
DA-0-306	D	Waterfront Elevation – Proposed	27 November 2023
DA-0-401	H	Section 1	27 November 2023
DA-0-402	R	Section 2	27 November 2023
DA-0-403	L	Section 3	27 November 2023
DA-0-501	A	Verandah Details	27 November 2023
DA-0-502	A	Parapets and Roof Details	27 November 2023
DA-0-901	R	GFA Diagrams – Proposal	27 November 2023
DA-0-941	M	External Finishes & Materials	27 November 2023
DA-0-942	B	External Colour Scheme	27 November 2023
DA-0-951	L	Shadow Analysis – Sheet 1	27 November 2023
DA-0-952	L	Shadow Analysis – Sheet 2	27 November 2023
DA-0-961	L	Views From Sun – Sheet 1	27 November 2023
DA-0-962	L	Views From Sun – Sheet 2	27 November 2023
DA-0-971	M	Height Plane Diagram	27 November 2023

2. the inclusion of landscape drawings prepared by Paul Scrivener Landscape in replacement of earlier corresponding landscape drawings as follows:

Drawing No.	Rev.	Title	Date
1 of 7	O	Landscape site plan	24 November 2023
2 of 7	O	Details Plan	24 November 2023
3 of 7	O	Planting Plan	24 November 2023
4 of 7	O	North elevation	24 November 2023
5 of 7	O	South elevation	24 November 2023
6 of 7	O	Section AA	24 November 2023
7 of 7	O	Landscape Calculation Plan	24 November 2023

3. the inclusion of a schedule of architectural amendments prepared by Dickson Rothschild dated 30 October 2023;

4. the inclusion of the ‘structural report’ prepared by BG&E Pty Limited dated 14 September 2023;

5. the inclusion of the ‘Resilience Assessment to Sea Level Rise and Change of Flood Patterns as a Result of Climate Change’ prepared by Haskew de Chalain Planning dated 3 July 2023;

6. the inclusion of the revised clause 4.6 variation request (height of buildings) prepared by Haskew de Chalain Planning dated 29 November 2023 in replacement of earlier clause 4.6 variation request;

7. the inclusion of BASIX certificate A500482_02 prepared by Paul & David Consulting Pty Ltd dated 1 December 2023 in replacement of the earlier BASIX certificate (the amended application).

3. that the Respondent will register the development consent on the NSW Planning Portal in accordance with section 4.20(1) of the Environmental Planning Assessment Act 1979 within 14 days of the date of the judgment.

Orders

32. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to DA No 2021/0132, as amended, for major alterations and additions to an existing dwelling house at 8 Drummoyne Avenue, Drummoyne NSW, being Lot 1 in DP1266285, subject to the conditions of consent set out in Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A (303171, pdf)

**********

Decision last updated: 14 December 2023