Pulido v Lane Cove Council

[2023] NSWLEC 1606

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pulido v Lane Cove Council [2023] NSWLEC 1606

Hearing dates:

Conciliation conference on 3-4 October 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 2023/34 for demolition of the existing dwelling house and construction of a two-storey residential dwelling, swimming pool, and associated landscaping at 19 George Street, Greenwich is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Lane Cove Local Environmental Plan 2009, cll 4.3, 4.4, 5.10, 6.1A, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.28

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Lane Cove Development Control Plan 2010

Category:

Principal judgment

Parties:

Rena Pulido (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/167195

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Lane Cove Council, of development application DA 2023/34 which seeks consent for the demolition of an existing dwelling house and construction of a new two-storey dwelling house over a basement level on the land at 19 George St, Greenwich, Lot 2 in DP 373433.

2. These proceedings have been brought to court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 4 October 2023. I presided over the conciliation conference.

4. 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.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if their decision is one 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. However, 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 and explained how each has been satisfied. From this I note the following points.

1. The development application has been made with the consent of the owner of the land to which it relates.

2. The application has been appropriately notified and one submission was received. Based on the parties’ submission and the filed correspondence between the resident submitter and the Respondent’s solicitor, I am satisfied that the concerns raised have been adequately addressed.

3. Pursuant to the requirements of the Lane Cove Local Environmental Plan 2009 (LCLEP), the subject site is zoned R2 Low Density Residential, within which development for the purposes of a dwelling house is permissible with consent. The parties submit, and I accept, that the proposed development is consistent with the objectives of this zone.

4. Pursuant to the requirements of the LCLEP cl 4.3, the proposed building is within the maximum height of buildings development standard of 9.5m.

5. It also meets the maximum Floor Space Ratio (FSR) development standard pursuant to LCLEP cl 4.4, with an FSR of 0.5:1.

6. The subject site is located within the Greenwich Heritage Conservation Area and is in proximity to several heritage items, including the adjacent Greenwich House (LCLEP sch 5 Item 150). Pursuant to LCLEP cl 5.10(4), I must consider the effect of the proposed development on the heritage significance of the heritage conservation area. Based on the submissions of the parties and the Heritage Impact Statement prepared by John Oultram Heritage and Design, dated March 2023, I accept that the proposal will have an acceptable impact on the conservation area and the heritage items in the vicinity, and is consistent with the heritage objectives and controls within the Lane Cove Development Control Plan 2010 (LCDCP).

7. Pursuant to the requirements of LCLEP cl 6.1A, I must consider the matters listed in cl 6.1A(3). Based on the subject matter of the conciliation, the parties’ submissions and the relevant conditions of consent, I have considered these matters and accept that they have been adequately addressed in the proposed development.

8. State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 requires consideration of whether the site is contaminated. The parties submit and, based on this and the information contained in the Heritage Impact Statement and the Statement of Environmental Effects, I accept that the site is suitable for the intended purpose as it has been historically used for residential purposes and there is no evidence to indicate that the site may be contaminated.

9. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to this site. Pursuant to the requirements of this SEPP, there can be no clearing of land on the site without the consent of council. Consent is subsequently requested and able to be granted through this development application.

10. Chapter 6 of the Biodiversity SEPP applies to the site as the site is located within the Sydney Harbour Catchment Area. The parties submit, and I accept, that pursuant to Pt 6.2, the matters listed in ss 6.6(2), 6.7(2), 6.8(2), and 6.9(2) have been adequately considered in the assessment of this development application. Further, pursuant to s 6.28 of the Biodiversity SEPP, the parties submit, and I accept that the development will not have any unacceptable impacts on views to and from the harbour and the scale, form, design and siting of the development will not impact upon the scenic quality of the foreshore or the harbour.

6. For these reasons, 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.

7. As the parties’ decision is one 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.

8. The Court notes:

1. That Lane Cove Council as the relevant consent authority has agreed, under Section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA 2023/34, in accordance with the below documentation:

Drawing:	Prepared by:	Dated:
01 Rev G CoverSheet	Lippmann	04/10/2023
03 Rev G Demolition Plan Excavation/Fill Plan	Lippmann	04/10/2023
04 Rev G Roof Plan	Lippmann	04/10/2023
05 Rev G Basement	Lippmann	04/10/2023
06 Rev G Ground Floor	Lippmann	04/10/2023
07 Rev G Level 01	Lippmann	04/10/2023
08 Rev G North and South Elevation	Lippmann	04/10/2023
09 Rev G East and West Elevation	Lippmann	04/10/2023
10 Rev G Section 1 & 2	Lippmann	04/10/2023
15 Rev G Materials Board	Lippmann	04/10/2023
101 Rev I  Stormwater Concept Plan	Civil & Stormwater Engineering Services Pty Ltd	7/08/23
103 Rev B Sediment & Erosion Control Plan & Details	Civil & Stormwater Engineering Services Pty Ltd	7/08/23
Arboricultural Impact Report Issue B	Landscape Matrix Pty Ltd	21/08/2023

2. The Applicant filed the amended stormwater plans on 29 September 2023, the amended Arboricultural Impact Report on 29 September 2023, and the amended architectural plans with the Court on 4 October 2023.

9. The Court orders:

1. The appeal is upheld.

2. Development application DA 2023/34 for demolition of the existing dwelling house and construction of a two-storey residential dwelling, swimming pool, and associated landscaping at 19 George Street, Greenwich is determined by the grant of consent subject to the conditions set out in Annexure A.

E Washington

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 13 October 2023