Richard Van Dorp Architects Pty Limited v Clarence Valley Council

[2020] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Richard Van Dorp Architects Pty Limited v Clarence Valley Council [2020] NSWLEC 1202
Hearing dates:	Conciliation conference on 1 May 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling housing - conciliation conference – agreement between the parties – orders
Legislation Cited:	Clarence Valley Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Richard Van Dorp Architects Pty Limited (Applicant) Clarence Valley Council (Respondent)
Representation:	Counsel: D Massey (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent)   Solicitors: Daniel Massey Solicitor & Consultant (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/75665
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for multi-dwelling housing at 47 Turf Street, Grafton, proposed to be carried out by alterations to an existing heritage listed building and the construction of five additional two-bedroom dwellings with ancillary landscaping, driveways and engineering works. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 1 May 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application, inter alia, increase the setback to the access laneway and change the entry to the existing dwelling.

4. 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:

• The site is located within the R1 General Residential Zone pursuant to the Clarence Valley Local Environmental Plan 2011 (“CLEP 2011”), and development for the purposes of ‘multi-dwelling housing’ is permitted with consent in the R1 zone.

• The effect of the development on the heritage significance of the heritage item and the heritage conservation area has been considered, as required by cl 5.10(4) of CLEP 2011. The heritage character of the street frontage is conserved and reinforced, and the external elements of the heritage house are being restored to their original condition, with any additions in the same character as the existing dwelling. All of the new dwellings are to be constructed to the rear of the site, behind the heritage item.

• By the agreement of the Council, the services essential for the development are available or that adequate arrangements have been made to make them available as required by cl 7.8 of CLEP 2011.

• The proposed development does not breach any development standards pursuant to the CLEP 2011 or any other applicable environmental planning instrument.

• Owners consent has been provided by the owner of the subject property, Joshua Watts.

• The Council has indicated that the notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration.

• The development application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of a dwelling house, it is unlikely to be contaminated and the parties agree that the land is suitable for continued residential use.

5. 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)).

6. 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.

7. The Court orders that:

1. The Applicant is granted leave to amend Development Application No. 2017/0501 and rely upon the following amended plans:

DESCRIPTION	AUTHOR	SHEET	REVISION	DATE
Cover Sheet	Richard Van Dorp Architects	A101	Ha	29/11/2019
Site & Floor Plan	Richard Van Dorp Architects	A102	Ha	29/11/2019
Elevations & Sections	Richard Van Dorp Architects	A103	Ha	29/11/2019
Landscape Plan	Richard Van Dorp Architects	A104	Ha	29/11/2019
Open Space Area	Richard Van Dorp Architects	A105	Ha	29/11/2019

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000.00 within 21 days of these orders being made.

3. The appeal is upheld.

4. Development Application No. 2017/0501 for renovations to an existing heritage listed building and construction of five additional two bedroom dwellings with ancillary landscaping, driveways and engineering works on the land at 47 Turf Street, Grafton and the adjacent laneway is approved subject to the conditions of consent in “Annexure A”.

…………………

J Gray

Commissioner of the Court

Annexure A (101 KB, pdf)

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Decision last updated: 01 May 2020