Rod Zoabi t/a Zta Architects v Georges River Council

[2019] NSWLEC 1164

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rod Zoabi t/a ZTA Architects v Georges River Council [2019] NSWLEC 1164
Hearing dates:	13-14 March 2019
Date of orders:	12 April 2019
Decision date:	12 April 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are: (1)   The Applicant is granted leave to amend the development application to remove reference to demolition and subdivision. (2)   The appeal is upheld. (3)   Development Application No. DA1485/2016 for the construction of a three storey dual occupancy development, each with a swimming pool, on Lot 22 Sec 8 DP 1963, also known as 7 Wharf Road, Kogarah Bay is approved subject to the conditions in Annexure “A”. (4)   The exhibits, except for Exhibits 1, 2 and K are returned.
Catchwords:	DEVELOPMENT APPLICATION: dual occupancy; bulk and scale; streetscape; precedent; contamination; stormwater; accuracy of survey levels.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kogarah Local Environment Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited:	Kogarah Development Control Plan 2012
Category:	Principal judgment
Parties:	Rod Zoabi t/a ZTA Architects (Applicant) Georges River Council Council (Respondent)
Representation:	Solicitors: S Shneider, Houston Dearn O'Connor (Applicant) A Berry, Georges River Council (Respondent)
File Number(s):	2018/234703
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2017/64 by Georges River Council (hereafter the Council) for construction of a three storey dual occupancy development, each with a swimming pool, on Lot 22 Sec 8 DP 1963, also known as 7 Wharf Road, Kogarah Bay (hereafter the site).

2. It is noted that the DA was amended on 13 March 2019 to delete the application for (Torrens title) subdivision.

Background

3. DA 2017/64 was lodged by the applicant on 29 March 2017, and subsequent to provision of additional information was notified to residents, resulting in three submissions in objection.

4. The DA was referred to the Georges River Independent Hearing and Assessment Panel (GRIHAP), who on 31 January refused the DA due to inaccuracies and inconsistencies in supporting information.

5. After application for review of the decision, pursuant to s 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), based on amended plans, the GRIHAP did not change its decision, which was confirmed on 18 June 2018 for the following reasons:

• Insufficient information,

• Floor space ratio (FSR) exceeds Kogarah Local Environmental Plan 2012 standard (specifically cl 4.4) and there is no written request, pursuant to cl 4.6 to seek a variation of the development standard,

• Inadequate BASIX certificate,

• Removal of trees of significant value,

• Uncertainty on remediation requirements,

• Inconsistent front setback with streetscape,

• Non-compliance with parking and water management requirements, and

• Potential adverse impact to the built and natural environment.

6. The applicant appealed against the refusal of DA404/2017, pursuant to s 8.7(1) of the EPA Act.

7. The Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (Court Act 1979), which commenced as a site view on 13 March 2019.

8. A total of two residents made submission at the site view, and expressed concern with regards to: the structural integrity at the rear of the property; accuracy of survey; potential for contamination; bulk and scale to side boundaries; view loss; and consistency with streetscape. These oral and written submissions were consistent with the previous written submissions made by these and other residents in response to the various notification periods that relate to this DA.

9. As the parties were unable to reach agreement, therefore pursuant to s 34AA(2)(b) of the Court Act 1979, the conciliation was terminated and the hearing of the appeal was held forthwith. The parties agreed to rely on observations and information obtained from the conciliation, in addition to evidence tendered in court at the hearing.

10. The parties, at the termination of the conciliation agreed that based on the supporting information to the DA and proposed conditions of consent, the contentions raised in the Statement of Facts and Contentions (SoFC) are essentially resolved. However, the Council is unable to seek agreement or consent orders, in recognition of the assessment for refusal made by the GRIHAP and issues raised by residents.

11. In this circumstance, I am nonetheless required to be satisfied of s 4.15 of the EPA Act, by carrying out an assessment regarding the contentions identified in the SoFC, and to determine whether there are any unresolved jurisdictional issues, and where appropriate, for the Court to grant consent. I am also required to consider the evidence and submissions made by the resident objectors.

12. At the commencement of the hearing, the applicant sought leave to amend the DA under this Class 1 appeal, and to delete ‘and subdivision’. The Court granted leave to amend the DA and Class 1 appeal application on 13 March 2019, with no objection raised by the respondent.

13. Further to this, after judgement reserved the Court requested clarification from the parties as to the ‘demolition’ sort in the DA under appeal. It was apparent onsite that the structures on the site have been demolished, and the applicant states this was done under a previous consent (DA 2017/98). By request of the applicant, with consent of the respondent, the Court grants leave on 2 April 2019 to amend the development application to remove reference to ‘demolition’.

14. In the hearing, the parties sort to amend the architectural plans to reduce the rear setback of dwelling ‘A’ on the ground floor by 2 m in an easterly direction (Exhibit A). In addition, clarification was sort on the accuracy and functionality of the proposed stormwater management (Exhibit C) as it relates to observations made onsite (such as physical constraints by change in topography at the rear) and the levels shown on the survey plan in Exhibit G. The Court, by consent of the parties, adjourned the hearing to allow for the amendments to supporting evidence, as agreed by the parties.

15. The agreed amendments to plans that clarify resolution of contentions were made, and the Court granted leave to rely on these amended plans for the appeal, which replace Exhibits A, C and G.

16. Further to this, the Court directed the parties when judgment was reserved to provide further clarity to the survey plan and to incorporate the survey levels from the resident’s survey for areas in the (rear) west of the site and along the northern/southern boundaries. Amended architectural plans and the survey plan were filed with the Court on 28 March 2019, and the Court grants leave to rely on these plans, which replace Exhibits A and G.

17. Also filed on the 28 March 2019 were agreed proposed conditions of consent, which replace Exhibit 5, with leave granted to rely on by the Court.

The Site

18. The site adjoins two streets, with Wharf Road forming the eastern boundary having a frontage of 15.24 m and considered the ‘front’, elevated side of the site. Wyee Road forms the western boundary in the shape of a ‘dog leg’, with a frontage of 16.62 m and forms the ‘rear’ of the site. The northern and southern boundaries of the site are 44.31 m and 48.48 m in length, respectively. The site has an area of 723.4 m2.

19. As shown on the amended survey plan, the site slopes towards the west with a fall of 6.8 m from the front boundary to the rear central portion of the site, after which the elevation falls beyond a sandstone ledge by up to 4 m, where it then gradually falls towards the rear boundary. The total fall across the site is approximately 10 m toward the west.

20. The majority of the site, from the front to the sandstone ledge in the rear portion of the site, is cleared of vegetation, except long grass and some building debris. The rear portion of the site from the ledge to Wyee Road is covered in dense, weedy vegetation.

21. Dwellings in the surrounding area range in age and size, with single level brick residences being replaced over time by newer, larger two and three storey brick dwellings.

Relevant Planning Controls and Requirements

22. The requirements of s 4.15(1)(c) of the EPA Act, with respect to the proposed development are relevant for consideration for the Court to grant consent to this DA.

4.15 Evaluation

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

23. As a result of the recent demolition of all structures on the site, cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP55) as it relates to the potential for contamination existing on the site is relevant for the Court’s consideration:

7 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

24. The site is located within an R2 Low Density Residential Zone, as identified in the Kogarah Local Environmental Plan 2012 Amendment 3 (KLEP), and the proposed use, as a dual occupancy, is permissible with consent in this zone. Of relevance in consideration of the DA are the following clauses of the KLEP: cl 1.8A savings provision; cll 2.2 and 2. 3 zone and objectives; cl 4.1B minimum lot size for dual occupancy; cl 4.3 height; cl 4.4 FSR; cl 4.6 exception (variation) to a development standard; and cl 6.2 excavation.

25. It is recognised that the DA was lodged prior to amendments 2 and 3 of the KLEP, however, pursuant to cl 1.8(2), the DA is assessed according to the relevant provisions of amendment 3.

1.8A Savings provisions relating to development applications

(1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable.

(2) A development application made, but not finally determined, before the commencement of Kogarah Local Environmental Plan 2012 (Amendment No 2) is to be determined and have effect as if that Plan had not been made, but only if an amendment made by that Plan prevents a consent authority from granting consent to the application.

26. The relevant section of the Kogarah Development Control Plan 2013 (KDCP) for consideration is Parts B (B4 and B6) and C1 which relates to parking, water management and dual occupancies, respectively.

Evidence

27. The applicant has relied on Mr Glenn Apps for expert evidence on planning.

28. The respondent has relied on Ms Heather Warton for expert evidence on planning.

Do the submitted supporting documents to the DA resolve the contentions and satisfy jurisdictional requirements to grant consent?

29. In assessment of the compliance to the jurisdictional requirements and satisfaction in resolution of the contentions, I rely on the following supporting documents and information provided for this DA:

1. Planning - Exhibits 2 (expert report) and A (plans).

2. Stormwater - Exhibit C (plan)

3. Landscape - Exhibit D (plan)

4. Contamination - Exhibit E (Stage 1 and 2 contamination investigation)

5. Geotechnical - Exhibit F (investigation report)

6. Survey - Exhibits G (amended survey plan), H and 8 (response from certified surveyor), and 6 (comparison of survey plans)

7. Proposed Conditions – Exhibit 5

30. I find that in assessment of the supporting documents to the DA under appeal and the evidence before me, that the contentions raised by Council and issues raised by residents, as they relate to this DA, are resolved to my satisfaction and the Court has no jurisdictional impediments to grant consent to this DA. I outline below my consideration as it relates to each contention raised regarding the (amended) DA under this appeal.

Contention 1 – Non-compliance with FSR and no clause 4.6 submission

31. The planning experts agree that pursuant to cl 4.4A(2) of the KLEP, a maximum FSR of 0.52:1 is established for development on this site.

32. The planning experts agree that based on the amended plans, in Exhibit A, the proposed development has an FSR of 0.52:1, which is compliant with cl 4.4A of the KLEP, and there is no requirement for a cl 4.6 written request for variation of the development standard. The experts also agree that the proposed development is consistent with objectives of cll 4.4 and 4.4A.

33. Further to this, the experts agree that the removal of structures that ‘enclose’ the pool area, as shown on the amended plans, this area is now not included in the calculation of FSR, pursuant to cl 4.5 of the KLEP. The experts consider that the proposed conditions, namely condition 3, will ensure compliance with the proposed design of the pool terrace area that will not result in non-compliance of FSR.

34. I accept that the amended plans and proposed conditions will result in a development that is in compliance with cll 4.4, 4.4A and 4.5 of the KLEP, and therefore this contention is resolved to my satisfaction.

Contention 2 – Non-compliance with minimum lot size for subdivision and no clause 4.6 submission

35. The site has an area of 723.4 m2.

36. The experts agree that the site is able to comply with the requirements of cl 4.1B of the KLEP with respect to the minimum lot size for a dual occupancy development, which is 650 m2. However, they also agree that cl 4.1 requires a minimum lot size after subdivision of 550 m2, which the site is unable to comply with.

37. I accept that the DA has been amended to remove the application for (Torrens title) subdivision, and that this contention is not pressed by the respondent, which resolves the contention to my satisfaction.

Contention 3 – Streetscape impacts

38. The experts agree that the amended plans (Exhibit A) with proposed conditions address the presentation of the proposed development to Wharf Street, by: the change to garaging at grade; consideration of the porch treatment; and bringing the ground floor forward within the front setback, so that the proposed dwellings present to the street in a two storey form. Further to this, the proposed building has a consistent front setback to adjoining dwellings, in rhythm with the street.

39. With respect to the rear of the site, the planning experts agree that the proposed development as it extends down the slope of the site is articulated in a way that does not set an undesirable precedent in the streetscape.

40. The experts recognise that, as shown in the amended plans, the reduction of 2 m length in dwelling A along the western section of the ground floor level results in an improved perception of bulk and scale to the adjoining residences. The experts agree that there are no adverse amenity impacts either internally or to neighbouring properties as result of the proposed development.

41. The experts agree and I accept that based on the amended plans the proposed development is in character with the local area, and therefore satisfies the relevant clauses of the KDCP, and the objectives of the zone in cl 2.3 of the KLEP.

42. I find that the amended plans together with the proposed conditions resolve contention 3, and also the concerns raised by adjoining residents.

Contention 4 – Inappropriate bulk and scale with resultant impacts to neighbouring properties

43. The issues raised in this contention are also consistent with those raised in contention 3. Therefore, my assessment of contention 4 considers the relevant factors that resolved contention 3.

44. The experts accept that the amended plans show the introduction of highlight windows to the cinema room in each dwelling, which will improve internal amenity, providing light and ventilation.

45. The experts agree that based on the amended plans there are no adverse amenity impacts either internally or to neighbouring properties as result of the proposed development.

43. The amended survey plan, cut/fill plan and survey levels shown on the amended architectural plans, the experts agree presents a proposed development that relates to the adjoining, existing neighbouring properties and to the streetscape. In addition, the experts agree that the proposed dwellings present with appropriate bulk and scale to neighbouring properties and the street.

44. The experts agree that the floor levels for the proposed dwellings together with the height/location of retaining walls and privacy screens adequately address any potential privacy related amenity issues, particularly those raised by the resident of 5 Wharf Road.

45. The experts agree that the proposed development complies with the side setbacks as set out in the KDCP and there is no inconsistency with the other relevant controls of the KDCP or standards of the KLEP, particularly cl 6.2.

46. I agree with the experts that the issues raised in contention 4 and by residents are satisfactorily addressed by the amended plans, including architectural, cut/fill and survey, and the relevant proposed conditions of consent which rely on these plans.

Contention 5 – Site not suitable for dual occupancy development

50. The site has a frontage of 15.24 m to Wharf Road, and the experts agree that the KDCP control for a dual occupancy development (Control 1, cl 2.1, Part C1) requires a frontage of 18 m, and therefore the site does not numerically comply.

51. However, the planning experts agree that the proposed development as detailed in the amended plans, has a width and length that is presents as consistency with the objectives of the control, and in character with the area. This is achieved by: the reduction in the extension of dwelling A to the rear; articulation of the floor levels with the existing slope; consistency with setbacks; and improvement in the presentation of the dwellings to the street.

52. I am satisfied that the amendment to the design of the dwellings, which is conditioned in the consent, that strict numeric compliance is not necessary at this site to achieve the objective of the control (cl 2.1, Part C1), and therefore contention 5 is resolved to my satisfaction.

Contention 6 - Amenity

53. The experts agree that the amended plans show dwellings that provide internal amenity to the residents of these dwellings, through the placement of windows and mechanical ventilation which allows sufficient light, ventilation and solar access.

54. Further to this, they agree that the reduction in bedrooms (from four) to three, as shown on the amended plans, and the availability of two parking spaces (in a single car garage and driveway parking) for each dwelling provides sufficient parking for the proposed development.

55. The experts agree and I accept that the amended plans resolve contention 6 and issues raised by the residents.

Contention 7 - Car parking is inadequate

56. This contention has been addressed in contention six above, as there similar issues raised. The experts agree that the amended plans remove the basement car parking and provide at grade parking for up to two cars is consistent with the relevant controls of the KDCP.

57. I am satisfied that based on the amended plans and proposed conditions of consent, (namely conditions 10, 43 and 43), this contention is resolved.

Contention 8 – Potential site contamination

58. It was observed onsite that all structures previously on the site have been demolished and some of that material remains on the site in the form of rubble.

59. The experts agree, that the Stages 1 and 2 contamination investigation report, (Exhibit E) indicates that the site is contaminated with asbestos, arsenic and lead, and will require remediation prior to construction of the proposed dwellings.

60. The experts are satisfied that the planned site remediation management plan is conditioned appropriately to address the existing levels of contamination on the site as part of the consent (particularly conditions 15-18, 22 and 24) and that the requirements of cl 7 of the SEPP 55 are addressed.

61. I am satisfied that the contamination on site as identified in the contamination investigation report (Exhibit E) and to be dealt with by the proposed conditions of consent is addressed satisfactorily and that the remediation plan is consistent with the requirements of cl 7 of the SEPP 55. Therefore, this contention is resolved to my satisfaction.

Contention 9 – Compliance with BASIX

62. The parties accept that pursuant to cl 6 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the proposed two dwellings on the site require BASIX certification. The issue however relates to whether two BASIX certificates are required for the two dwellings or a single multi-dwelling BASIX certificate are required as part of dual occupancy (attached) use (i.e. two dwellings in one building), to satisfy cl 2A(2) in Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), below:

2A BASIX certificate required for certain development

(1) In addition to the documents required by clause 2, a development application for any BASIX affected development must also be accompanied by a BASIX certificate or BASIX certificates for the development, being a BASIX certificate or BASIX certificates that has or have been issued no earlier than 3 months before the date on which the application is made.

(2) If the proposed development involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling, a separate BASIX certificate is required for each dwelling concerned.

63. I am satisfied that this contention has been resolved and take no issue that the parties have agreed in conditions 1 and 28 to provide a single BASIX certificate for the two proposed dwellings (in one building). A single BASIX certificate for a multi-dwelling development has been provided by the applicant, dated 14 March 2019. I am satisfied that the BASIX certificate before me is consistent with cl 2A of the SEPP BASIX.

Contention 10 – Removal of trees not supported

64. The experts agree that the amended plans show that the two trees located at the rear of the site that were the basis for this contention have been preserved and also that these trees will be protected by way of proposed conditions of consent (namely conditions 21 and 22).

65. In addition, the proposed condition (5) for the removal of the tree on the nature strip at the front of the site is agreed by the parties.

66. I agree that the amended plans and proposed conditions satisfy the relevant controls of the KDCP, and therefore this contention is resolved to my satisfaction.

Contention 11 – Treatment of stormwater has not been adequately addressed

67. During the adjournment, the Council’s stormwater experts were given the opportunity to respond to the amended stormwater management plans tendered as Exhibit C. They agreed with the applicant’s stormwater expert that the onsite detention (OSD) tanks should be relocated away from the pool and rock ledge in the west of the site, which was amended in plans tendered to replace Exhibit C.

68. However, the experts agree that amended plans show a potential inconsistency with the OSD tanks located above the sewer line that traverses the site. The experts agree that OSD tanks must not be placed over a sewer line, which is addressed to their satisfaction by the proposed conditions of consent, requiring Sydney Water certification (condition 13), and a requirement for detailed stormwater plans (conditions 31 and 32).

69. The experts agree that the proposed stormwater management system for the proposed development can function by gravity flow towards the rear of the site and that there would likely be no adverse impacts offsite form the proposed development.

70. I accept the proposed functioning of the amended stormwater management system shown in the amended plans and the relevant proposed conditions of consent will ensure existing services (i.e. sewer) are protected and that the constraints of the site are considered appropriately in the design of the system. This contention is resolved to my satisfaction.

Contention 12 – Insufficient information

71. I am satisfied that this contention is resolved with the provision of the amended plans and supporting documents to this DA, as described paragraph [29] above. This contention has been resolved and has led to the resolution of the contentions described above.

Conditions of consent

72. I accept the conditions of consent as proposed and agreed by the parties which were provided to the Court on 28 March 2019 to replace Exhibit 5, with update of the relevant plan details.

73. However, I do not accept the proposed deferred commencement conditions identified as ‘DC1 Amended Plans’, which I delete in full. I am content that the applicant has already provided these plans with relevant amendments, and therefore this condition is deemed unnecessary.

74. In granting consent to this DA, the conditions of consent form Annexure A of the consent for the DA.

Conclusion

75. I have carefully considered the evidence before me and (resident) objections relevant to the DA under appeal, together with the submissions and my observations during the onsite view. Having carefully considered the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.15 of the EPA Act, that DA 1485/2016 warrants approval.

76. I am required to: assess the evidence that the approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly, consent is granted to the development and subject to the conditions of consent annexed to this judgment.

Orders

77. Consequently, the orders of the Court are as follows:

1. The Applicant is granted leave to amend the development application to remove reference to demolition and subdivision.

2. The appeal is upheld.

3. Development Application No. DA1485/2016 for the construction of a three storey dual occupancy development, each with a swimming pool, on Lot 22 Sec 8 DP 1963, also known as 7 Wharf Road, Kogarah Bay is approved subject to the conditions in Annexure “A”.

4. The exhibits, except for Exhibits 1, 2 and K are returned.

…………………….

Sarah Bish

Commissioner of the Court

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Annexure A 

Decision last updated: 12 April 2019