Pratt v Wollongong City Council

[2019] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pratt v Wollongong City Council [2019] NSWLEC 1258
Hearing dates:	Conciliation conference on 31 May 2019
Date of orders:	11 June 2019
Decision date:	11 June 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1)   The appeal is upheld; and (2)   DA-2018/247 for the conversion of an existing shed to a secondary dwelling at Lot 91 DP 10422 otherwise known as 77 Dobbie Avenue, East Corrimal, is determined by the grant of consent, subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conversion of a shed into a secondary dwelling – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Wollongong Local Environmental Plan 2009
Texts Cited:	National Construction Code – Building Code of Australia Volume 2 Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Wendy Pratt (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: L Saw (Applicant)   Solicitor: J Reilly, Wollongong City Council (Respondent)
File Number(s):	2018/328876
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Wendy Pratt (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 against the refusal by Wollongong City Council (the Council) of Development Application DA-2018/247 (the application).

2. The application proposes the conversion of an existing approved shed to a secondary dwelling at Lot 91 DP 10422 otherwise known as 77 Dobbie Avenue, East Corrimal (the site).

3. The site contains an existing dwelling house (the primary residence) with a detached shed to the rear which is adjoined by a tool shed. Unauthorised works had been undertaken to convert the detached shed into a dwelling. These works included construction of a bathroom, kitchenette, and internal walls.

4. The site is situated in an area zoned R2 Low Density Residential under the provisions of the Wollongong Local Environmental Plan 2009 (the LEP).

5. Secondary dwellings are not permissible in the R2 zone, however are permissible if used as affordable housing, with the R2 zone being a prescribed zone pursuant to cl 20(b) of Div 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP).

6. The application was notified but no objections were received. The application was refused on 13 June, 2018, and the applicant lodged the appeal.

7. In response, the Council filed a Statement of Facts and Contentions (SFC) raising concerns with compliance with the key elements of the National Construction Code – Building Code of Australia Volume 2 (the BCA), including with regard to fire safety. Concern was also raised with non-compliances with the Wollongong Development Control Plan 2009 (the DCP) in terms of side and rear setbacks and the provision of private open space for both the existing primary residence and the proposed secondary dwelling.

8. Insufficient information was also provided regarding the tool shed in terms of required fire separation under the BCA. Further, if the tool shed was part of the secondary dwelling, that dwelling would not comply with cl 22 of Div 2 of the ARH SEPP as the floor area of the secondary dwelling would exceed 60m².

9. The appeal was listed for a conciliation conference and hearing on June 13 and 14, 2019 pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act). However, in late May the parties advised that the applicant had amended the application to address the Council contentions, and these had been resolved.

10. The parties therefore requested that the hearing be vacated and the matter be listed as a s 34 conciliation conference at which to present an agreement. This occurred and I presided over that conciliation where an agreement under s 34(3) of the LEC Act was filed by the parties.

11. As the presiding Commissioner, I am satisfied that the decision reached by the parties is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

13. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

14. As indicated, the application is required to be assessed and approved as affordable housing under the ARH SEPP.

15. The application complies with the provisions of the ARH SEPP. The tool shed is to be allocated to the primary residence and the total area of the secondary dwelling is 45.36m² thereby complying with subcl 22(1)(b) whilst the total area of both dwellings complies with the requirement not to exceed the maximum floor area permissible in the zone at subcl 22(1)(a). The site is larger than 450m² and therefore lot size cannot be a basis for refusal.

16. The site has a maximum permissible floor space ratio (FSR) of 0.5:1 at cl 4.4 of the LEP. The development will result in an overall FSR comprising both of the dwellings on the site of 0.22, well within the maximum permissible FSR of 0.5:1.

17. Private open space is also now allocated to each dwelling. Whilst there remains a DPC non-compliance in terms of setbacks, the Council was satisfied that no amenity issues would arise from this.

18. Conditions of consent require building upgrade works to the secondary dwelling to meet the requirements of the BCA. These include installing a smoke alarm system, and the fire rating of external walls exposed to the fire source feature of the side and rear property boundaries and of the internal wall between the tool shed and the secondary dwelling. Given the tool shed is only to be used by the primary residence but is attached to the secondary dwelling, this wall is also to be sound insulated as required by the BCA.

19. Other BCA upgrade works    to be undertaken include installation of a compliant damp proof barrier and termite management system.

20. The upgrading requirements can, by condition, be addressed through compliance with the deem-to-satisfy requirements of the BCA, or by a formulated alternative solution satisfying the BCA requirements.

21. The development is also required to comply with the provisions of State Environmental Planning Policy No 55—Remediation of Land and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. As indicated the site is in the R2 Low Density Residential zone. It is, has and will continue to be used for residential purposes. The proposal does not seek to alter the categorisation of land use and the Council advised that the site has not been used for activities that may cause contamination.

22. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

23. Accordingly, the Court orders that:

1. The appeal is upheld; and

2. DA-2018/247 for the conversion of an existing shed to a secondary dwelling at Lot 91 DP 10422 otherwise known as 77 Dobbie Avenue, East Corrimal, is determined by the grant of consent, subject to the conditions at Annexure “A”.

…………………………………..

Jenny Smithson

Commissioner of the Court

Annexure A (26.3 KB)

**********

Decision last updated: 11 June 2019