Smoljo v Georges River Council

[2022] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smoljo v Georges River Council [2022] NSWLEC 1530

Hearing dates:

Conciliation conference held on 23 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

(1)   The applicant is to file a deed requiring the creation of an easement to drain water for the benefit of land known as 46A Llewellyn Street Oatley over land known as 46 Llewellyn Street Oatley executed by the owners of those properties within 4 weeks of this decision.

(2)   On receipt of that deed, the following Orders will be made:

(a)   The Class 1 application is upheld.

(b)   Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.

Catchwords:

Conciliation conference – agreement between the parties – dwelling house

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000

Georges River Local Environmental Plan 2021 cll 4.3, 4.4, 5.1, 6.1, 6.3, 6.4, 6.6, 6.9, 6.10, 6.12

Land and Environment Court Act 1979 s34

State Environmental Planning Policy (Resilience and Hazards) 2021 cll 2.10, 2.11, 2.12, 4.6(1)

Texts Cited:

Georges River Development Control Plan 2021, Pts 1,5, ss 3, 6.1, 6.4

Category:

Principal judgment

Parties:

Lovro Smoljo (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughers (Barrister)(Applicant)
Sims (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/184295

Judgment

1. COMMISSIONER: Development Application DA2021/0437 was lodged with Georges River Council on 26 October 2021 seeking consent for demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks.

2. The Council refused consent on 31 May 2022 and the applicant is appealing that decision pursuant to the provisions of s8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The matter was listed for a conciliation conference on 23 September and in preparation for that conference, the applicant prepared amended plans which were lodged on the NSW Planning Portal on that day. Those plans are said to address the contentions in the case and for that reason, the parties have entered into an agreement pursuant to the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). The parties are seeking consent to the application.

The proposal

4. The amended plans provide for demolition of existing site improvements and the construction of a new two storey dwelling house, landscaping and earthworks.

5. The major change to the proposal is the reduction in height of the proposed dwelling house so that it is now fully compliance with the development standard for building height. In addition, setbacks from boundaries and landscaped areas have been increased.

6. Further documentation in relation to Acid Sulfate Soils, Geotechnical assessment and a BASIX certificate were also provided.

7. The ground floor of the dwelling would comprise an entry foyer, double garage, two bedrooms, study, laundry, bathroom and rumpus room. A further two bedrooms, bathrooms, and living space would be provided on the first floor.

The site and locality

8. The site is formally identified as Lot 1 in DP 503492 and known as No 46A Llewellyn Street, Oatley. It is a rectangular shaped allotment with a site area of 556.4m² sloping from its street frontage to the south-east towards the rear battle-axe property at No 46 to the north-west.

9. A two storey brick and tile dwelling, swimming pool and shed currently stand on the land. The pool would be retained with remaining improvements demolished to facilitate construction of the new dwelling. There are three significant trees at the front of the site, two within the site and one within the road reserve. The amended proposal allows for the retention of both trees.

10. The locality contains a variety of one and two storey dwellings and dual occupancies. The area can be characterised as transitional with majority of the older style dwellings punctuated by newer developments with a larger modern footprint. The area is residential in character.

11. The slope of the site facilitates water views to the north west towards Gungah Bay and the west and south west to the Georges River.

Planning controls

12. The site is zoned R2 Low Density Residential pursuant to the Georges River Local Environmental Plan 2021 (LEP). Dwelling houses are permitted with consent in the R2 zone.

13. Clause 4.3 of the LEP establishes maximum building heights with a maximum height of 9m prescribed.

14. Clause 4.4 establishes a maximum floor space ratio for the site of 0.55:1.

15. The site falls within the Foreshore Scenic Protection Area.

16. Georges River Development Control Plan 2021 (DCP) applies to the site with Parts 1, 3, 6.1 and 6.4 relevant and Part 5 containing Residential Locality Statements. The site is within the Oatley West locality. This locality is bounded by the suburb of Mortdale to the north, the railway line to the east, the Georges River to the south and the suburb of Peakhurst Heights to the west.

17. The Future Desired Character for the area is detailed as follows:

• Retain and enhance the prominence of the bushland landscaped character in new development through tree planting and landscaping.

• Encourage consistent setbacks of buildings from the street and the provision of landscaping within the front setback.

• Encourage the retention of trees and sharing of water views wherever possible, including screening via vegetation rather than solid walls.

• Public views to waterways should be retained from streets and public places.

The contentions

18. The original contentions in the case are summarised as follows:

• Non-compliant building height and inadequate request to vary the development standard;

• Failure to respond the character of Oatley West and the topography;

• Inadequate setbacks from boundaries;

• Inadequate landscaping and excessive impervious areas;

• Inadequate stormwater drainage.

The amended application

19. The amendments made address the contentions as detailed in the Council’s Statement of Facts and Contentions filed on 28 July 2022.

20. The height of the building has been reduced through the reduction in the floor to ceiling height of the living area. A minimum floor to ceiling height of 3-3.4m is achieved in this area with bedrooms at 2.7m.

21. The height of the dwelling is now consistent with the building standard for building height.

22. An increased setback to Llewellyn Street has been provided which is a minimum of 4.5m and increases to 4.9m at the entry and 5.5m for the garage. This is consistent with the DCP controls and addresses the Council’s concerns in relation to character and streetscaped.

23. Setbacks from the side are 900mm for the ground floor and 1.5m for the first floor with additional articulation along both sides providing increased setbacks.

24. Whilst the DCP calls for a 1.5 setback at both levels, the parties agree that because of the driveways on each side of the site that service rear properties, the setbacks are adequate and provide for a view through the site between the proposed and existing dwellings. I accept that submission.

25. The dwelling has been designed to step down the site and is therefore responsive to the topography and minimises site excavation or filling.

26. Additional landscaping has been provided because of the increased setback to the street and also the provision of impervious areas around the dwelling. The amount of landscaping provided is acceptable to the Council with agreed conditions requiring maintenance of the areas.

27. The issue of stormwater has been resolved through correspondence from the adjoining owner of the downstream site which advises they would be prepared to grant an easement for stormwater over an existing line of pipes that service the site. The Council requires the parties to enter into a formal deed to ensure the easement is created and a deferred commencement consent be issued once the deed is made to ensure the easement is registered. Orders reflecting this requirement are included in the s34 agreement filed with the Court.

28. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

29. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

30. In that regard, the Parties agree, and I am satisfied, the LEP is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal is permissible with consent.

31. The proposal complies with all of the relevant development standards in Part 4 

32. The proposal is not within a flood planning area and accordingly cl5.1 of the LEP does not apply.

33. The land is shown as class 5 on the Acid Sulfate Soils Map however, consistent to the terms of cl 6.1 of the LEP, consent is not required as the works will not lower the water table below 1mAHD on adjacent class 1, 2, 3 or 4 land as a consequence of any works.

34. Clause 6.3 of the LEP requires consideration of certain aspects of stormwater management. Having regard to the evidence provided, I am satisfied that the development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, includes on-site stormwater retention in the form of a water tank to minimise stormwater runoff volumes and reduce the development’s reliance on mains water, groundwater or river water, avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and is designed to minimise the impact on public drainage systems.

35. Despite its proximity to the river, the site is not identified on a Coastal Hazard and Risk Map or the Foreshore Building Line Map and therefore, consideration of the provisions of clause 6.4 of the LEP is not required.

36. The site is within a foreshore scenic protection area. Clause 6.6 requires consideration of a range of matters. In this regard and having regard to the proposal and evidence available, I am satisfied, to the extent that are relevant to the scale of the proposal, that the development would facilitate the protection of the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, the avoidance or minimisation of the disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, the maintenance and enhancement of native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, the achievement of no net loss of significant vegetation or habitat, the avoidance of clearing steep slopes and facilitation of the stability of the land, the minimisation of the impact on the views and visual environment, including views to and from the Georges River, foreshore reserves, residential areas and public places and the minimisation of the height and bulk of the development by stepping the development to accommodate the fall in the land.

37. Clause 6.9 of the LEP requires a consent authority to be satisfied that certain services essential to the development are available or that adequate arrangements have been made to make them available when required. The site is currently serviced by electricity, water and sewer and no change to the demand for those services arises.

38. I am satisfied that the letter from the owner of adjoining land advising he would be prepared to grant a drainage easement over that land, the terms of the Orders sought, specifically in relation to the deed to ensure the provision of the stormwater easement and the subsequent registration of the stormwater easement before the consent becomes operative, ensure that all the essential services are available.

39. Clause 6.10 of the LEP prevents the grant of consent unless the consent authority considers the proposal exhibits design excellence. The parties agree that the Court is able to be satisfied the development does and I accept that submission.

40. Having regard to the design of the dwelling house, I consider that design exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location and that the form and external appearance of the development will improve the quality and amenity of the public domain. The development will not detrimentally impact on view corridors.

41. The site is suitable for residential development, being consistent with the uses and mix of dwellings in the locality. There are no heritage issues and streetscape constraints.

42. I accept the joint position of the parties that the relationship of the development with other development (existing or proposed) on neighbouring sites in terms of separation, setbacks, amenity and urban form, and the bulk, massing and modulation of buildings is acceptable.

43. As the building height is compliant with the development standard, the street frontage heights are also acceptable.

44. The design incorporates environmental impacts such as sustainable design features and minimises potential adverse impacts of overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity.

45. Pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of pedestrian networks are available and the design does not adversely impact on the public domain, and achieves appropriate interfaces at ground level between the building and that public domain.

46. The amended plans provide for excellence and integration of landscape design. The scale of the proposal is such that the remaining matters for consideration in cl 6.10 are not relevant to determination of the application.

47. Clause 6.12 of the LEP requires consideration of landscaping because of the R2 zoning of the land. Having regard to the evidence before me and the agreed position of the parties, I am satisfied that the development allows for the establishment of appropriate plantings that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates and will maintain and enhance the streetscape and the desired future character of the locality. It will also maintain privacy between dwellings, and, subject to compliance with the agreed consent conditions, does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on the land or adjacent land and integrates with the existing vegetation to protect existing trees and natural landscape features.

48. The development will have a landscaped area of 31.4% which exceeds the 25% minimum specified in sub-cl 5 for dwelling houses located on land within the Foreshore Scenic Protection Area.

49. The site is mapped as being within a coastal use area and coastal environmental area under State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). Having regard to those matters detailed in cll 2.10, 2.11 and 2.12 and the agreed position of the parties, I am satisfied that the development will not adversely impact any of the relevant matter listed as the development has been designed to avoid those issues.

50. The proposed development is not likely to cause increased risk of coastal hazards on the site or other land.

51. Clause 4.6(1) of SEPP R&H precludes the grant of consent unless the consent authority has considered whether the land is contaminated. Given the long term residential usage of the site, the fact no change of use is proposed and the agreed position of the parties I accept the site is unlikely to be contaminated and is therefore suitable for continued residential use.

52. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent.

53. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed.

54. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council.

55. Accordingly, I am satisfied that the proposal is in the public interest, noting that the Council did not receive any objections to the application following its notification.

56. 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. Final Orders will not be made until such time as the Court is advised that the Deed referred to in the agreement is signed by all parties.

Orders

1. The applicant is to file a deed requiring the creation of an easement to drain water for the benefit of land known as 46A Llewellyn Street Oatley over land known as 46 Llewellyn Street Oatley executed by the owners of those properties within 4 weeks of this decision.

2. On receipt of that deed, the following Orders will be made:

1. The Class 1 application is upheld.

2. Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.

.…………………………

S Morris

Acting Commissioner of the Court

Annexure A (320654, pdf)

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Decision last updated: 28 September 2022