Salerno v Northern Beaches Council

[2020] NSWLEC 1376

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Salerno v Northern Beaches Council [2020] NSWLEC 1376

Hearing dates:

Conciliation conference on 31 July 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A.

(2) The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,000.00.

(3) The appeal is upheld.

(4) Development Application DA 2019/0954 for alterations and additions to the existing dwelling and the construction of a new secondary dwelling and swimming pool on Lot 20 in DP 15762 known as 87 Narrabeen Park Parade, Mona Vale, NSW is approved subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – new secondary dwelling – conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Pittwater Local Environmental Plan 2014

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Nina Salerno (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
E Julliard (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2020/142511

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 2019/0954) for alterations and additions to the existing dwelling and the construction of a new secondary dwelling and swimming pool on Lot 20 in DP 15762 known as 87 Narrabeen Park Parade, Mona Vale, NSW (the site).

2. On 31 July 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions.

4. An agreement pursuant to s34 of the LEC Act was filed by the parties on 14 August 2020 giving effect to the agreement in principle.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree based on the material provided to the Court that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. Pittwater Local Environmental Plan 2014 (PLEP)

1. Land Use Table – the land is zoned E4 Environmental Living Zone.

2. Clauses 2.1, 2.3 and 2.7 – The proposed development, being alterations and additions to the existing dwelling and the construction of a new secondary dwelling and swimming pool, is permissible with consent in the E4 Environmental Living Zone.

3. Clause 4.3 – The proposed development does not exceed the maximum height shown for land under this clause and the consent Respondent has considered that the development meets the objectives of this clause.

4. Clause 7.1 – Acid sulfate soils. The land is identified as containing Class 5 acid sulfate soils, however, the proposal does not involve excavation below 5m AHD, and will not lower the water table.

5. All other requirements in PLEP have been considered and are satisfied including those in cll 7.2 (Earthworks) and 7.10 (Essential Services).

6. The proposed development does not breach any relevant development standards in PLEP.

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

1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The application included a BASIX certificate. The fulfilment of the commitments listed in the BASIX certificate is a prescribed condition under cl 97A of the Environmental Planning and Assessment Regulation 2000.

3. State Environmental Planning Policy No 55—Remediation of Land

1. Under clause 7(1)(a) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), consideration has been given to whether the land is contaminated. The subject site has been used for residential purposes for an extended time and the proposed development retains the residential use. It is considered the site poses no risk of contamination. The application does not require further consideration under cll 7(1)(b) and (c) of SEPP 55.

4. State Environmental Planning Policy (Coastal Management) 2018

1. The site is located within the coastal use area and the coastal environment area under State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coastal). The parties are satisfied that the proposed development complies with SEPP Coastal and no further consideration, including under cll 10 to 15 of SEPP Coastal is required.

5. Environmental Planningand Assessment Act 1979

1. Notification requirements under the EPA Act have been satisfied and submissions that were received have been relevantly considered.

2. The matters referred to in s 4.15(1) as are of relevance to the development the subject of the application have been taken into consideration.

3. Owner’s consent to the lodgement of the development application has been granted.

7. 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.

8. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

9. The Court orders:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A.

2. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,000.00.

3. The appeal is upheld.

4. Development Application DA 2019/0954 for alterations and additions to the existing dwelling and the construction of a new secondary dwelling and swimming pool on Lot 20 in DP 15762 known as 87 Narrabeen Park Parade, Mona Vale, NSW is approved subject to the conditions set out in Annexure A.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (188099, pdf)

Plans (11554092, pdf)

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Amendments

20 August 2020 - Correction to the Case Title.