Richardson v City of Canada Bay Council

[2020] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:

Richardson v City of Canada Bay Council [2020] NSWLEC 1481

Hearing dates:

Conciliation conference on 7 October 2020

Date of orders:

12 October 2020

Decision date:

12 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Refer to orders at [12]

Catchwords:

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

Legislation Cited:

Canada Bay Local Environmental Plan 2013

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

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

State Environmental Planning Policy No 55— Remediation of Land

Texts Cited:

City of Canada Bay Development Control Plan 2017

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Daniel Richardson (First Applicant)
Nicci Richardson (Second Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
D Raithby (Agent) (Applicants)
M Cottom (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers (Respondent)

File Number(s):

2020/179367

Publication restriction:

No

Judgment

1. COMMISSIONER: Daniel Richardson and Nicci Richardson (the Applicants) have appealed the deemed refusal by City of Canada Bay Council (the Respondent) of their development application DA2020/0047 seeking approval for the demolition of an existing structures and construction of a timber deck, double garage with first floor secondary dwelling, and a vehicular crossing (the Proposed Development) at 46 Bertram Street, Mortlake (the Subject Site).

2. The Subject Site is zoned R1 General Residential under the provisions of Canada Bay Local Environmental Plan 2013, and the Proposed Development is permissible within this zone.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 7 October 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s ‘COVID-19 Pandemic Arrangements Policy’ and a site view was not undertaken as part of the proceedings.

6. 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 consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied the Subject Site is not contaminated;

2. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), an updated BASIX Certificate No. 1130803S has been prepared in respect of the Applicant’s amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate;

3. pursuant to the provisions of Canada Bay Local Environmental Plan 2013 (CBLEP), the Proposed Development, as amended:

1. complies with the applicable height of buildings development standard set out in cl 4.3 of the CBLEP;

2. complies with the applicable floor space ratio set out in cl 4.4 of CBLEP;

3. complies with the applicable development standard concerning the total floor area of the proposed secondary dwelling under cl 5.4(9)(a) of CBLEP.

4. the Applicant’s development application was notified in accordance with the relevant requirements of the EP&A Act, the EP&A Regulation and City of Canada Bay Development Control Plan 2017, and no submissions were received in response to that notification.

9. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. I am further 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.

11. 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.

12. 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.

13. The Court orders that:

1. Leave is granted to the applicant to further amend the development application by relying on the following documents prepared by Derek Raithby Architecture:

Further amended architectural plans dated September 2020

1. DA-00 – Cover sheet (issue 4)

2. DA-01 – Site analysis plan (issue 4)

3. DA-04 – Proposed ground floor (issue 7)

4. DA-05 – Proposed first floor (issue 7)

5. DA-06 – Proposed sections (issue 8)

6. DA-07 – Proposed elevations (issue 7)

7. DA-09 – Proposed window/door schedule (issue 5)

8. DA-10 – External finishes schedule (issue 4)

9. DA-11 – Shadow diagrams (issue 5)

10. DA-12 – Driveway cross details (issue 5)

11. DA-13 – Calculation – GFA (issue 3)

12. DA-14 – Wall detail (issue 2).

Further amended BASIX certificate

13. BASIX certificate 1130803s dated 2^ND October 2020.

2. No order as to costs.

3. The appeal is upheld.

4. Consent is granted to Development Application no. DA2020/00476 (as further amended above) for Alterations and additions including demolition of existing garage, construction of new garage with studio above and deck to house and associated works to be carried out on Lot 11 Section 3 DP 1790 known as 46 Bertram Street, Mortlake subject to the conditions at Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (292288, pdf)

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Decision last updated: 12 October 2020