Singh v Bayside Council

[2024] NSWLEC 1563

Land and Environment Court

New South Wales

Medium Neutral Citation:

Singh v Bayside Council [2024] NSWLEC 1563

Hearing dates:

Conciliation conference 20-21 August 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld

(2) Development consent is granted to Development Application No. 2023/27 for demolition of an existing single storey dwelling house and garage and construction of a 'dual occupancy (attached)', including single driveway and landscaping works, at the land legally described as Lot 30 Section 8 DP 939789 & Lot 1 DP 1007932, known as 43 Wellington Street, Mascot 2020, subject to the conditions contained in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 and 6

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

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Category:

Principal judgment

Parties:

Anil Jit Singh (First Applicant)
Madhur Singh (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
Self Represented (Applicants)
P Brown (Solicitor) (Respondent)

Solicitors:
Self Represented (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/61073

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application number DA2023/27 for demolition of the existing structures, Torrens title subdivision into two allotments and construction of two semi-detached dwellings (DA) at 43 Wellington Street, Mascot (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 2021) to the Applicant amending DA2023/27 in accordance with the documents listed below (amended DA):

Plans	Rev	Date
Architectural Plans prepared by Beyond Vision Design
i) Cover Page, A01	H	20 August 2024
ii) Erosion & Sediment Control Plan, A03	H	20 August 2024
iii) Demolition Plan, A04	H	20 August 2024
iv) Site Analysis, A05	H	20 August 2024
v) Site Plan, A06	H	20 August 2024
vi) Ground Floor Plan, A07	H	20 August 2024
vii) First Floor Plan, A08	H	20 August 2024
viii) Roof Plan, A09	H	20 August 2024
ix) GFA Plan, A10	H	20 August 2024
x) Elevations, A11	H	20 August 2024
xi) Elevations, A12	H	20 August 2024
xii) Sections, A13	H	20 August 2024
xiii) Landscape Plan, A14	H	20 August 2024
xiv) Shadow Diagrams, A15	H	20 August 2024
xv) Shadow Diagrams, A16	H	20 August 2024
Stormwater Management Plans prepared by Abu Ahmed
xvi) Stormwater management Plan, SW01	•	12 August 2024
xvii) Stormwater management Plan, SW02	•	12 August 2024
xviii) Stormwater management Plan, SW03	•	12 August 2024
xix) Stormwater management Plan, SW04	•	12 August 2024
Other Plans/Material
Amended BASIX Certificate: 1761146M	-	22 August 2024

3. The changes are summarised as:

• Removal of subdivision and agreed condition to restrict future Torrens Title subdivision through an 88E instrument in favour of Council.

• Change from semi-detached dwellings to a dual occupancy development.

• Changes to present as a single dwelling, including amendments to the driveway.

• Internal design changes.

• Agreed changes to landscaping and stormwater works through conditions of consent.

4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20-21 August 2024. I have presided over the conciliation conference. The BASIX Certificate and final agreement were submitted to the Court on 28 August 2024.

5. 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 for the amended DA and granting development consent to the amended application subject to conditions.

6. 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.

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. 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

9. 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.

10. I am satisfied that owners consent accompanied the DA.

11. The DA was lodged to the Respondent on 27 January 2023. The Respondent notified the DA between 3 February 2023 to 17 February 2023. One submission was received. In entering an agreement, the parties advised the Court that they have considered the concerns raised.

Bayside Local Environmental Plan 2021

12. The site is zoned R2 Low Density Residential under the Bayside Local Environmental Plan 2021 (BLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone (cl 2.3).

13. The parties agree and I accept that the following applicable BLEP provisions are met:

1. Demolition is sought as per cl 2.7.

2. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 9m. The amended DA, as shown on the architectural plans prepared by Beyond Vision Design dated 20 August 2024 (architectural plans) confirm that the proposed building is less than 9m (elevation dwgs A11-A12).

3. Clause 4.4 floor space ratio (FSR) applies to the site and allows a maximum of 0.6:1. The architectural plans show that the amended DA does not exceed the maximum FSR, at 0.59:1 (Site Plan dwg A06).

4. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5 soils. The Council Report and jurisdictional statement states that the amended DA is unlikely to lower the water table. The provisions of subcl 6.1 (2) and (3) therefore do not apply.

5. Clause 6.2 earthworks is a matter of consideration under the amended DA. The amended DA proposes minimal excavation and does not propose basement areas. I accept the parties’ have considered the provisions and that appropriate conditions of consent regarding waste, dilapidation reports and sediment control measures are also included within Annexure A.

6. Clause 6.3 stormwater management applies to the amended DA. The amended DA is supported by stormwater plans prepared by ABU Ahmed which shows stormwater discharging to the street. The stormwater plans are subject to conditions of consent to modify the design in accordance with the Stormwater Joint Expert Report and amended single driveway design.

7. Clause 6.8 development in areas subject to aircraft noise applies. The amended DA is accompanied by an Aircraft Noise Intrusion Report prepared by Telematrix dated 20 January 2023. The Council Report details that the provisions of cl 6.8 are satisfied. The recommendations form part of the conditions of consent at Annexure A.

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

14. The proposed development is BASIX affected development (s 27 of EPA Reg). The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022, which does not apply in accordance with the savings provisions under s 4.2. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (1761146M dated 22 August 2024) that satisfies the repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. The parties agree that no significant vegetation exists and the amended DA is consistent with the provisions of SEPP BC.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The Council Assessment Report within the Bundle of Documents (Council Report) states that the site has a history of residential use for many years and is unlikely to be contaminated. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP RH have been adequately addressed.

Conclusion

17. 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.

18. 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.

19. 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

20. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 2023/27 for demolition of an existing single storey dwelling house and garage and construction of a 'dual occupancy (attached)', including single driveway and landscaping works, at the land legally described as Lot 30 Section 8 DP 939789 & Lot 1 DP 1007932, known as 43 Wellington Street, Mascot 2020, subject to the conditions contained in Annexure A.

S Porter

Commissioner of the Court

61073.24 Annexure A

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Decision last updated: 17 September 2024