Revelop Building & Development Pty Ltd v Cumberland Council

[2024] NSWLEC 1403

Land and Environment Court

New South Wales

Medium Neutral Citation:

Revelop Building & Development Pty Ltd v Cumberland Council [2024] NSWLEC 1403

Hearing dates:

Conciliation conference 17 June 2024

Date of orders:

16 July 2024

Decision date:

16 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant shall pay the respondent's costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $750, such costs to be paid within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application No DA2023/0512 seeking consent for the construction of an attached dual occupancy (being Stage 1) and the subsequent Torrens title subdivision of the dwellings for the end purpose of creating two semi-detached dwellings (Stage 2) at Lot 113 in Deposited Plan 1223098 otherwise described as 4 – 6 Buru Place, Pemulwuy, is granted consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2021, cll 2.3, 2.6, 2.7, 4.1, 4.1B, 4.3, 4.4, 5.21, 6.2, 6.4, 6.7, 6.9, 6.12
Environmental Planning and Assessment Regulation 2021, ss 27, 38
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Revelop Building & Development Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Hemmings (Respondent)
C McFadzean (Solicitor) (Applicant)

Solicitors:
Thomson Geer Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

2023/462931

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA-2023/0512. The development application as filed sought development consent for construction of an attached two storey dual occupancy with Torrens title subdivision into two lots (DA) at 4-6 Buru Place, Pemulwuy, legally known as Lot 113 in DP 1223098 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending development application DA-2023/0512 in accordance with the description and documents listed below (amended DA):

• Construction of an attached dual occupancy (being Stage 1) and the subsequent Torrens title subdivision of the dwellings for the end purpose of creating two semi-detached dwellings (Stage 2).

Reference/Dwg No	Title/Description	Prepared By	Date/s
DA 1002 Rev C	Compliance Table	CDA Architects	28/5/2024
DA 1003 Rev C	Subdivision Plan
DA 1004 Rev C	Site Plan
DA 1006 Rev C	Street Numbering Plan
DA 1101 Rev D	Ground Floor Plan		5/6/2024
DA 1103 Rev C	First Floor Plan		28/5/2024
DA 1104 Rev C	Roof Plan
DA 2001 Rev C	North & South Elevation
DA 2002 Rev C	East & West Elevation
DA2003 Rev C	Street Elevation
DA 3001 Rev C	Short Section
DA 3002 Rev C	Long Section
DA 3003 Rev A	Services Sections		29/2/24
DA 6001 Rev C	Proposed Shadow Diagrams - 1		28/5/24
DA 6002 Rev C	Proposed Shadow Diagrams – 2
DA 6003 Rev C	Proposed Shadow Diagrams – 3
DA 6004 Rev B	Proposed Shadow Diagrams - 4
DA 6020 Rev C	Sun Angle Views 8AM – 21 June
DA 6021 Rev C	Sun Angle Views 9AM – 21 June
DA 6022 Rev C	Sun Angle Views 10AM – 21 June
DA 6023 Rev C	Sun Angle Views 11AM – 21 June
DA 6024 Rev C	Sun Angle Views 12PM – 21 June
DA 6025 Rev C	Sun Angle Views 1PM – 21 June
DA 6026 Rev C	Sun Angle Views 2PM – 21 June
DA 6027 Rev C	Sun Angle Views 3PM – 21 June
DA 6028 Rev C	Sun Angle Views 4PM – 21 June
DA 6029 Rev C	Solar Schedule
DA 7001 Rev C	GFA Calculation
DA 7011 Rev C	Solar Access Plan
DA 7021 Rev C	Ventilation Diagrams
DA 7031 Rev C	Finishes Schedule
DA 7041 Rev C	3D Views - 1
DA 7042 Rev C	3D Views - 2
DA 7043 Rev C	3D Views - 3
DA 7091 Rev B	LEP Height Blanket	29/2/2024
SW01 Rev A	Drainage Plan	Vanguard Consulting Engineers	21/3/2024
SW02 Rev A	Erosion and Sediment Control Plan
001	Swept Paths	PDC Consultants

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 June 2024. I have presided over the conciliation conference.

4. As part of 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 22 September 2023 to 6 October 2023. No submissions were received.

Cumberland Local Environmental Plan 2021

10. The site is zoned R3 Medium Density Residential under the Cumberland Local Environmental Plan 2021 (CLEP). The development components for the proposed dual occupancy and the proposed Torrens title subdivision for the purpose of semi-detached dwellings are permitted with consent and I have had regard to the objectives of the zone as per cl 2.3.

11. The parties agree and I accept that the following applicable CLEP provisions are met:

1. Clause 2.6 requires development consent for subdivision, as proposed within the amended DA.

2. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

3. Clause 4.1 minimum subdivision lot size requires a minimum lot size of 300m². As shown on the amended architectural plans prepared by CD Architects (architectural plans), the two proposed lots are 300.78m² and 322.9m² (Dwg DA 1003).

4. Clause 4.1B minimum lot sizes for dual occupancies applies to the amended DA, which stipulates a minimum site area of 550m². As shown on the survey plan prepared by Geosurv Surveyors dated 26 April 2023, the site is above the minimum requirement at 690.6m².

5. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 10m. The amended DA is 7.8m as set out in the jurisdictional statement and supported by architectural plan dwg DA 7091.

6. Clause 4.4 floor space ratio (FSR) applies to the site and prescribes a maximum of 0.7:1. The proposed FSR is 0.466:1 as shown on architectural plan dwg DA 7001.

7. Clause 5.21 flood planning applies. The amended DA is supported by amended stormwater drainage plans prepared by Vanguard Consulting Engineers dated 21 March 2024 (SW plans). As shown in the SW plans and set out in the jurisdictional statement and SOFAC, the amended DA demonstrates adequate stormwater management, appropriate design responsive to the flood conditions, compatibility with the flood behaviour of the site and that it will not adversely affect safe occupation or evacuation.

8. Clause 6.2 earthworks applies to the amended DA. The parties set out in the jurisdictional statement and SOFAC that the provisions have been considered.

9. Clause 6.4 essential services applies to the amended DA. As set out in the Statement of Environmental Effects prepared by Think Planners dated 30 August 2023 (SEE), all essential services are provided to the site.

10. Clause 6.7 stormwater management applies to the amended DA. The architectural plans and SW plans demonstrate on-site retention through stormwater tanks, provision of adequate permeable areas and management of stormwater away from adjoining properties including sediment and erosion measures.

11. Clause 6.9 salinity applies to the site which is classified as moderate salinity potential. The SEE provides that salinity has been addressed through the initial larger lot subdivision previously approved and completed. The provisions have been satisfied as set out in the SEE, jurisdictional statement and SOFAC.

12. Clause 6.12 urban heat island applies. The SEE sets out that the development has utilised appropriate building materials, landscaping, roof materials and internal heating/cooling mechanisms to meet the provisions.

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

12. The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, the SEPP does not apply. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 has been repealed.

13. I am satisfied that the DA was accompanied by a BASIX Certificate at the time of lodgement as required by s 27 of the EPA Reg.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. The parties identified ss 6.6, 6.7, 6.8, 6.9, 6.10 and 6.11 as relevant.

15. The parties submit and I accept that the site has a neutral impact on water quality, minor impacts to the water areas identified in the provisions, no impacts on periodic flooding to wetlands or riverine ecosystems, no impacts on recreational uses, does not impact downstream local government areas, the development is not water dependent and accordingly will not have any adverse environmental impacts.

16. The amended DA is accompanied by a suite of SW plans that form part of the conditions of consent and specific conditions that will appropriately regulate ongoing stormwater management.

17. With consideration of the above, the jurisdictional statement and SOFAC, the parties agree and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA is accompanied by a Site Audit Statement in relation to the original subdivision for DA2010/382/1 which confirms that the site is no longer contaminated and suitable for residential use. Accordingly, the parties agree, and I am satisfied that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies, as the amended DA is within 2m of underground power lines. The parties agree that the response from the relevant authority, Endeavor Energy, has been incorporated and the DA amended to remove all encroachments from the underground cables easement.

Conclusion

20. 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.

21. 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.

22. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

23. The Court orders:

1. The applicant shall pay the respondent's costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $750, such costs to be paid within 28 days of these orders.

2. The appeal is upheld.

3. Development Application No DA2023/0512 seeking consent for the construction of an attached dual occupancy (being Stage 1) and the subsequent Torrens title subdivision of the dwellings for the end purpose of creating two semi-detached dwellings (Stage 2) at Lot 113 in Deposited Plan 1223098 otherwise described as 4 – 6 Buru Place, Pemulwuy, is granted consent subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

**********

Decision last updated: 16 July 2024