Sitou v Burwood Council

[2022] NSWLEC 1420

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sitou v Burwood Council [2022] NSWLEC 1420

Hearing dates:

Conciliation conference on 20 and 21 July 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant's written request, pursuant to clause 4.6 of the Burwood Local Environmental Plan 2012, seeking a variation to the development standards for Floor Space Ratio is upheld.

(2)   The Appeal is upheld.

(3)   Development Application No. DA99/2021 for demolition of existing dwelling associated structures and construction of a new two-storey dwelling house over a basement garage with swimming pool, spa, front fence and associated landscaping on land legally comprising of the allotment described as Lot 2 DP948782, known as 23 Victoria Street, Burwood is determined by the grant of Development Consent, subject to the conditions set out in Annexure “A”.

Catchwords:

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

Legislation Cited:

Burwood Local Environmental Plan 2012, cll 4.4, 4.6
Contaminated Land Management Act 1997, Div 2 Pt 3
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), s 4.6

Category:

Principal judgment

Parties:

Eillen Sitou (Applicant)
Burwood Council (Respondent)

Representation:

Solicitors:
G McKee (Applicant)
S Shneider (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Houston Dearn O'Connor Lawyers (Respondent)

File Number(s):

2022/92591

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Eillen Sitou (Applicant) against the Respondent’s deemed refusal of Development Application No. DA 2021/99 with Burwood Council on 16 September 2021.

2. The development application seeks consent for the Applicant to demolish the existing dwelling and other structures on the land and to construct a new two storey dwelling house and associated structures over a basement garage. The application includes a new swimming pool, spa, front fence and associated landscaping. A lift is included in the development with the lift being used to access the basement, ground floor and level one. The development is to be constructed on Lot 2 in Deposited Plan 948782, known as 23 Victoria Street Burwood NSW 2134.

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 20 and 21 July 2022.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions.

5. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. This is because the development application includes an exceedance of the development standard contained within cl 4.4 of the Burwood Local Environment Plan 2012 (BLEP) relating to floor space ratio’s (FSR). As a result, the application includes a written request seeking to vary a development standard pursuant to cl 4.6 of the BLEP) which I must consider.

8. The proposed development will result in a built form which has a gross floor area of 332.61m² resulting in an FSR of 0.55:1. This is exceeds the allowable FSR under cl 4.4 of the BLEP, which is 0.52:1, resulting in a variation of 9.6%.

9. The parties agree, as explained in the cl 4.6 written request, that the non-compliant FSR of the dwelling does not result in a development that is out of character with the local area, which is consistent with the low density-built form of the locality. The variation on FSR relates to the basement level wherein areas below ground have been included in the definition of gross floor area and therefore form part of the FSR calculation. As the excess gross floor area is within the basement, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The written request notes that proposal is otherwise compliant with the controls of the Council, particularly in relation to its height, setbacks and built area controls.

10. The parties therefore agree that a variation of the FSR development standard, pursuant to cl 4.4 of the BLEP can be supported and that the cl 4.6 written request meets the requirements for a cl 4.6 variation of the FSR development standard. Having reviewed the amended cl 4.6 written request, I agree that the cl 4.6 written request for the height standard variation addresses the requirements of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. I agree with the reasoning put forward in the written request to vary the development standard and am therefore satisfied that the requirements of cl 4.6 of the BLEP have been addressed and that a variation in the development standard for FSR, pursuant to cl 4.4, can be upheld.

11. As the presiding Commissioner, I am satisfied that the decision is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the BLEP, the subject site is zoned R2 Low Density Residential. In determining the development application, I have had regard to the objectives of the zone.

2. The application was placed on public notification from 22 September 2021 to 6 October 2021 with no objections being received. Notification requirements under the EPA Act have been satisfied.

3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards). The parties agree that the land has been used as a dwelling site for a significant period and is not identified in Council’s records as being contaminated or being declared an area of investigation under Div 2 Pt 3 of the Contaminated Land Management Act 1997. I am satisfied that the requirements under SEPP Hazards have been met and that no further assessment is required.

12. 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’ agreement.

13. 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.

Orders

14. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant's written request, pursuant to clause 4.6 of the Burwood Local Environmental Plan 2012, seeking a variation to the development standards for Floor Space Ratio is upheld.

2. The appeal is upheld.

3. Development Application No. DA99/2021 for demolition of existing dwelling associated structures and construction of a new two-storey dwelling house over a basement garage with swimming pool, spa, front fence and associated landscaping on land legally comprising of the allotment described as Lot 2 DP948782, known as 23 Victoria Street, Burwood is determined by the grant of Development Consent, subject to the conditions set out in Annexure “A”

.……………………

S Harding

Acting Commissioner of the Court

Annexure A (317480, pdf)

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Decision last updated: 05 August 2022