Sorensen v Maitland City Council

[2024] NSWLEC 1188

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sorensen v Maitland City Council [2024] NSWLEC 1188

Hearing dates:

Conciliation conferences on 14 and 28 March 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1)   The Applicant is directed to file the amended development application the subject of Order (4) within 7 days of the date of this Order.

(2) The Applicant is to pay the Respondent's costs thrown in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3)    The appeal is upheld.

(4)   Development Application No DA/2022/1286 as amended, for subdivision – one into two lots; demolition of existing shed and pool cabana; decommission existing driveway crossover on Grange Avenue; stormwater drainage and associated works; and utility installation at Lot 9116 in DP 874539 known as 10 Hermitage Close, Thornton, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Maitland Local Environmental Plan 2011, cll 1.9A, 2.3, 2.7, 4.1

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

Category:

Principal judgment

Parties:

Rebecca Sorensen (Applicant)
Maitland City Council (Respondent)

Representation:

Counsel:
G Long (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Long Legal Pty Ltd (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/287015

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of DA No DA/2022/1286 for the subdivision of one lot into three lots, demolition of the existing shed and pool cabana, decommission of the existing driveway crossover on Grange Avenue and utility installation (DA) at 10 Hermitage Close, Thornton legally known as Lot 9116 in DP 874539 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 March 2024 and continued 28 March 2024. I have presided over the conciliation conferences.

3. 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 Development Application No DA/2022/1286 in accordance with the documents listed below (amended application):

Plan Ref No.	Sheet No.	Revn No.	Revision Date	Prepared by: (consultant)
2203332 – Proposed Subdivision at Lot 9116 DP 874539, 10 Hermitage Close Thornton	1 of 1	A	14/03/2024	Sorensen Design & Planning
2303407 – Proposed Building Envelope at 10 Hermitage Close Thornton	1 of 1	N/A	11/03/2024	Sorensen Design & Planning

4. The changes within the amended DA primarily relate to a reduction of the proposed lots from three to two lots and provision of further information in relation to a potential building footprint.

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 subject to conditions of consent.

6. I note that as part of the 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. The DA was lodged to Council on 2 December 2022. I am satisfied that owners consent accompanied the development application with consideration of documents filed in the duration of the Class 1 appeal and agreed jurisdictional statement from the parties.

11. The Respondent notified the DA between 14 December 2022 and 18 January 2023. 27 unique submissions were received. At the commencement of the site viewing, the Court heard oral concerns from objectors and had the benefit of a site viewing from one of the objectors.

12. In reaching agreement, Council as the consent authority, has considered the concerns raised.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The Statement of Environmental Effects prepared by Perception Planning dated 22 November 2022 addresses SEPP RH and states that there has been a historical residential use of the site and no evidence to indicate that contaminating activities had occurred. I accept the parties agreement that the provisions of SEPP RH has been satisfied.

Maitland Local Environmental Plan 2011

14. The site is zoned R1 General Residential under the Maitland Local Environmental Plan 2011 (MLEP). The proposed development for subdivision is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

15. Clause 1.9A suspension of covenants, agreements and instruments applies to the site. Subdivision is a form of development and for the purposes of dealing with the jurisdictional matters, the existing covenants do not apply in the manner that restricts the carrying out of development in accordance with the MLEP.

16. Clause 2.7 states that demolition requires development, which is sought in the amended DA.

17. Clause 4.1 minimum subdivision lot size stipulates a minimum lot size of 450m². The two proposed lots are over the minimum, being 1,737m² for lot 1 and 740m² for lot 2 as shown on the subdivision plans included at condition 1 in Annexure A.

Conclusion

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.

20. 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.

Orders

21. The Court orders that:

1. The Applicant is directed to file the amended development application the subject of Order (4) within 7 days of the date of this Order.

2. The Applicant is to pay the Respondent's costs thrown in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No DA/2022/1286 as amended, for subdivision – one into two lots; demolition of existing shed and pool cabana; decommission existing driveway crossover on Grange Avenue; stormwater drainage and associated works; and utility installation at Lot 9116 in DP 874539 known as 10 Hermitage Close, Thornton, is determined by a grant of consent subject to conditions contained in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Amendments

19 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), Typographical errors in Annexure A are corrected.

Decision last updated: 19 April 2024