Stanley v Wagga Wagga City Council

[2024] NSWLEC 1255

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Stanley v Wagga Wagga City Council [2024] NSWLEC 1255

Hearing dates:

Conciliation conference on 26 April 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA22/0725 as amended, for the use of an existing shed and removal of building envelope at 108 Brindabella Drive Tatton, subject to the conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – use of existing shed – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16

Conveyancing Act 1919, s 88B

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

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

Wagga Wagga Local Environmental Plan 2010, cll 5.21, 7.1A

Category:

Principal judgment

Parties:

Slade Paul Stanley (Applicant)
Wagga Wagga City Council (Respondent)

Representation:

Counsel:
E Lee (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Friedlieb Fox McLeod (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/453522

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal, by Wagga Wagga City Council (the Respondent), of development application DA22/0725 which seeks consent for the use of an existing shed and the removal of a building envelope at 108 Brindabella Drive, Tatton, Lot 335 DP1247818. These proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The existing shed is located adjacent to a dwelling house, on a residential lot that is currently zoned R1 General Residential pursuant to the Wagga Wagga Local Environmental Plan 2010 (WWLEP). The lot was previously zoned as a mix of R1 and C2 Environmental Conservation, and to protect the C2 zone from particular development, a restriction on the land in the form of a building envelope was imposed under s 88B of the Conveyancing Act 1919. This building envelope follows the boundary between the former R1 and C2 zones, and the shed in question is located mostly outside the envelope. The shed was constructed without development consent.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 April 2024. I presided over the conciliation conference.

4. After 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 and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. 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 these have been satisfied. From this I note the following:

1. The application was made with the written consent of the owner of the subject site.

2. The development application was appropriately notified, and one submission was received. The parties submit, and I accept that the matters raised in this submission have been considered and adequately addressed in the assessment of this application.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Statement of Environmental Effects prepared by CAF Consulting dated August 2023, I accept that the land is not likely to be contaminated and is suitable for the proposed development with no further remediation or investigation necessary.

4. Pursuant to the WWLEP, the site is zoned R1 General Residential, within which development for the purposes of dwelling houses is permissible with consent. The shed is ancillary to the dwelling house and is therefore permissible with consent, and the development is consistent with the relevant objectives of the zone.

5. No maximum height or floor space ratio is specified for this site in the WWLEP.

6. The site is identified as being subject to overland flooding. The parties submit that the Respondent has assessed the likely impact of the shed on overland flow and that this impact is both minimal and acceptable. Subsequently, I accept that the requirements of WWLEP cl 5.21 are met with the proposed development.

7. Although the application does not seek consent for the earthworks previously undertaken on the site to fill beneath the shed, the parties submit, and I accept, that the Respondent has considered the likely impact of those earthworks pursuant to the requirements of WWLEP cl 7.1A and that this is acceptable.

6. For these reasons, 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.

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 Court notes:

1. The Respondent has agreed, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant’s amendment of Development Application DA22/0725 to substitute the plans and documents as outlined in Annexure A.

9. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA22/0725 as amended, for the use of an existing shed and removal of building envelope at 108 Brindabella Drive Tatton, subject to the conditions of consent in Annexure B.

E Washington

Acting Commissioner of the Court

453522.23 Annexure A

453522.23 Annexure B

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Amendments

16 May 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), correction is made to include the Applicant's Counsel onto the coversheet.

24 May 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), by consent of both parties correction is made to Deposited Plan number in paragraph 1 from ‘DP127732’ to ‘DP1247818’.

Decision last updated: 24 May 2024