Taylor v Sutherland Shire Council

[2023] NSWLEC 1796

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Taylor v Sutherland Shire Council [2023] NSWLEC 1796

Hearing dates:

Conciliation conference on 15 December 2023

Date of orders:

28 December 2023

Decision date:

28 December 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

Proceedings 2023/174011

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA23/0016 for alterations and additions to existing dwelling at Lot 10 in Deposited Plan 30821 known as No 9 Mypolonga Avenue, Gymea Bay subject to the conditions of consent at Annexure A.

Proceedings 2023/174016

The Court orders:

(1) Within 60 days, the Applicant shall provide to Sutherland Shire Council structural certification that the new openings to the external walls are structurally adequate.

(2) Within 60 days from the receipt of the structural certification referred to in (1) above, Sutherland Shire Council shall issue a Building Information Certificate (BIC23/0004) for the following works only:

(a) The steel poles of the deck structure at ground level;

(b) Framework for the reconfiguration of internal walls;

(c) Demolition of internal walls;

(d) The ground level of the excavated area; and

(e) Changes to openings in external walls.

which are indicated on the plans prepared by Bowerman design dated November 2023 numbered 01/B, 02/B, 03/B,

04/B and 05/B (marked in red) for the property at 9 Mypolonga Ave, Gymea Bay.

(3) The appeal is upheld.

(4) Each party pay their own costs of this appeal.

Catchwords:

APPEAL – development application – prospective building works – building information certificate – regularising building works undertaken without consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 6.25, 8.25, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015, cl 6.1, 6.2, 6.4, 6.5, 6.7, 6.8, 6.9

Texts Cited:

NSW Rural Fire Service, Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

Joel Michael Taylor (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/174011
2023/174016

Publication restriction:

Nil

Judgment

1. COMMISSIONER: There are two proceedings before me here which relate to 9 Mypolonga Avenue, Gymea Bay, legally described as Lot 10 DP 30821 (site). The proceedings can be introduced, respectively, as follows:

• Proceedings 2023/174011 is an appeal against the refusal by Sutherland Shire Council (Council) of DA 23/0016 seeking development consent for alterations and additions to an existing dwelling on the site. Henceforth, I will describe this as the DA appeal.

• Proceedings 2023/174016 is an appeal against the refusal of Council to issue a Building Information Certificate (BIC) over part of the building occupying the site. Henceforth, I will describe this as the BIC application appeal. The Council reference number for the BIC application appeal is BIC 23/0004.

2. Both proceedings are appeals under Class 1 of the Court’s jurisdiction. The BIC application appeal is brought under s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA appeal is brought under s 8.7 of the EPA Act.

3. According to Council’s Statement of Facts and Contentions filed on 26 June 2023, the proposal behind the DA appeal included:

“• Replacement of existing porch with a new handrail and balustrade

• Provision of new access stairs to the rear pool (upper level deck and lower level deck)

• New aluminium framed clerestory windows

• New Colorbond roof and cladding to upper walls

• New Colorbond gutters, fascia and eaves”.

4. The works with which the BIC application appeal is concerned were summarised as follows in Council's Statement of Facts and Contentions with respect to that matter also filed on 26 June 2023:

“Ground Floor Level

i. Excavation carried out in the front portion of the site to provide a level area for vehicles to be parked and reduces the gradient of the existing access to the garage.

ii. The existing garage door opening has been widened.

iii. New ground floor terrace added.

iv. Interior changes to the interior layout of the ground floor level including the removal of walls.

First Floor Level

i. A new balcony replacing an existing balcony to the rear of the dwelling which is balcony is approximately 1.4m wider than the balcony it replaces.

ii. Removal of the existing front porch.

iii. Alterations to the size of windows to the front facade where they have increased in size.

iv. Internal layout changes to the first floor”.

Conciliation and agreement reached between the parties

5. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). This was held on 15 December 2023. I presided over the conference. The parties advised me of the background to the proceedings. As I understand it certain unauthorised works on the site were subject to enforcement proceedings by Council. After a period of time and some dialogue, the applicant submitted the subject applications seeking the grant of consent for prospective works (through the making of a development application) and to regularise the unauthorised works (through the making of a building information certificate application). Further, amendments to the particulars were agreed subsequent to the original lodgement of the DA appeal and BIC application appeal.

6. At the conciliation conference, the parties advised that agreements under s 34(3) of the LEC Act had been reached. The decisions agreed upon by the parties are that the two appeals be upheld. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decisions if the parties’ decisions are decisions that the Court could have made in the proper exercise of its functions.

7. There are certain legal thresholds which require attention before this function can be exercised. The parties’ assisted here with a jurisdictional statement provided to the Court on 14 December 2023 and through the general discussion of relevant matters during the conciliation. Apart from the parties, the following two persons where also active in the conciliation conference in explaining the technical parameters behind jurisdictional considerations:

• C Gorrie – a bushfire risk expert.

• G Apps – a town planning expert.

Jurisdiction

Development application appeal

Environmental Planning and Assessment Act 1979 – s 4.14

8. The parties advise that the site is identified as bushfire prone land pursuant to s 4.14 of the EPA Act. Ms Gorrie is a person who is recognised by the NSW Rural Fire Service as a suitably qualified consultant in bush fire risk assessment pursuant to s 4.14(1)(b) of the EPA Act. In turn, Ms Gorrie has reviewed the DA and provided advice to the parties on conformance with relevant specifications and requirements. At this point, a certificate under s 4.14(b) of the EPA Act has not been issued but Council advised me it is satisfied that the development, with the inclusion of relevant conditions as advised by bushfire risk experts and the Rural Fire Service, would meet the relevant specifications and requirements of “Planning for Bush Fire Protection 2019”. On a related point, the parties have also agreed on appropriate conditions of consent to address the bushfire risk and Bushfire Attack Level Flame Zone (BAL FZ) of the land in accordance with the Planning For Bushfire Protection 2019. With this advice, I am satisfied that the requirements of s 4.14(1)(a) of the EPA Act have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Chapter 2 (coastal management) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies and the site is located within a coastal environment area and a coastal use area, as designated. In turn, the provisions of s 2.10 and 2.11 apply, respectively.

10. In relation to s 2.10 and the fact that the development is on land within the coastal environment area, the parties advise that consideration has been given to whether the proposed development is likely to cause an adverse impact on the matters listed at s 2.10(1). I, too, have given consideration to these seven areas. The parties further advise that they believe that the matters at s 2.10(2) have been satisfied. The development is quite separated from and not likely to bring any significant adverse consequences in the coastal environment area, given that the proposed development does not go beyond the swimming pool, generally within the existing development footprint of the site and appropriate conditions have been incorporated to satisfy requirements in relation to more sensitive environmental concerns. I am satisfied that the development is designed, sited and will be managed to avoid any adverse impact referred to in s 2.10(1), or if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact. This means I also am satisfied in relation to the matters at s 2.10(2).

11. In relation to s 2.11 and the fact that the development is on land within the coastal use area, the parties advise that consideration has been given to whether the proposed development is likely to cause an adverse impact in relation to the five matters listed at s 2.11(1)(a) and that there has been a taking into account of the surrounding coastal and built environment, and the bulk, scale and size of the proposed development in accordance with s 2.11(1)(c). I, too, have given consideration to these areas. The parties further advise that they believe that the matters at s 2.11(1)(b) have been satisfied. I accept this advice of the parties and am satisfied that the development is designed, sited and will be managed to avoid any adverse impact referred to in s 2.11(1)(a), or if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact. The reason for this is again because the proposed development is generally within the bounds of the existing development footprint (clear of the more sensitive land) and that appropriate conditions have been incorporated to satisfy requirements in relation to more sensitive areas. This means I am also satisfied in relation to the matters at s 2.11(1)(b).

12. Section 4.6 of SEPP Resilience and Hazards requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. I accept the advice of the parties that the site has been in long term use for residential purposes, and that in such instances no further investigation in relation to contamination is required. The requirements of s 4.6 have been satisfied.

Sutherland Shire Local Environmental Plan 2015

13. The site is zoned C3 Environmental Management and the development is permissible in the zone, with consent. The parties advise they believe the development aligns with the zone objectives.

14. The parties advise that the proposal does not breach any development standards.

15. The parties have drawn my attention to the consideration they have given to cll 6.1, 6.2 and 6.4 (with respect to acid sulfate soils, earthworks and stormwater management, respectively) and their view that the requirements of the clauses are reasonably addressed. But nothing turns in a jurisdictional sense on these provisions.

16. Clauses 6.5, 6.7 and 6.8 concerned with environmentally sensitive land (with respect to terrestrial biodiversity, riparian land and watercourses and environmental and scenic qualities of natural landforms, respectively) all apply to the site and do require jurisdictional findings.

17. With respect to cl 6.5 (focusing on terrestrial biodiversity), the parties expressed the view that consideration had been given to the matters at cl 6.5(3), and that they believed the Court could be satisfied with the matters at cl 6.5(4). Their reasoning is that because of the location of the proposed development (within the general development footprint) and proposed consent conditions, the development would not bring about any significant adverse environmental impact. I accept this advice and am satisfied in respect to cl 6.5(4)(a).

18. With respect to cl 6.7 (focusing on riparian land and watercourses), the parties expressed the view that consideration had been given to the matters at cl 6.7(3), and that they believed the Court could be satisfied with the matters at cl 6.7(4). Their reasoning is for similar reasoning to the above. That is that the location of the proposed development and proposed consent conditions mean the development would not bring about any significant adverse environmental impact. The parties also noted, with respect to this topic, the sizeable depth of the site (indicated as between 91.7m and 89.1m in Council’s Statement of Facts and Contentions filed on 26 June 2023) and the considerable distance of the proposed development from the actual waterway (Gymea Bay). I accept the advice of the parties and am satisfied in respect to cl 6.7(4)(a).

19. With respect to cl 6.8 (focusing on environmental and scenic qualities of natural landforms), the parties expressed the view that consideration had been given to the matters at cl 6.8(3), and that they believed the Court could be satisfied with the matters at cl 6.8(4). That is, that because of the limited scope of development which meets relevant development standards, the location of the proposed development (within the confines of the development footprint) and proposed consent conditions mean the development would not bring about any significant adverse environmental impact. I accept the advice of the parties and am satisfied in respect to cl 6.8(4)(a).

20. The parties drew my attention to cl 6.9 concerning the limitation of development within foreshore areas and noted that no development was proposed within the identified foreshore area.

Conclusion with respect to DA appeal

21. For the reasoning outlined above, there are no jurisdictional bars to the grant of consent with respect to the DA appeal in accordance with the conditions agreed by the parties.

Building Information Certificate Appeal

22. Jurisdictional considerations in relation to the BIC application appeal are found at ss 6.25 and 8.25 of the EPA Act. The parties have advised that the decision underpinning the agreement they have reached brings the position that the jurisdictional test at s 6.25(1) of the EPA Act has been met. They further advise that the pre-requisites at subss 8.25(1) and (2) of the EPA Act have been met; and that the Court is able to make the agreed orders with respect to the BIC application appeal under s 8.25(3) of the EPA Act.

23. I accept the position of the parties with respect to the BIC application appeal and find that jurisdiction is available to effect the parties’ decision.

Conclusion

24. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met with respect to both the DA appeal and BIC application appeal and the parties’ decision, in each case, is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

Proceedings 2023/174011

26. The Court notes that Sutherland Shire Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No. DA23/0016 to rely on the following amended plans and documents:

Plan Number	Reference	Prepared by	Date
Drawing No. 01/B	Site/Roof Plan	Bowerman Design	November 2023
Drawing No. 02/B	Overall Site Plan/Site Analysis	Bowerman Design	November 2023
Drawing No. 03/B	Ground Floor Plan	Bowerman Design	November 2023
Drawing No. 04/B	First Floor Plan	Bowerman Design	November 2023
Drawing No. 05/B	Elevations	Bowerman Design	November 2023
Drawing No. 06/B	Elevations/BASIX Commitments	Bowerman Design	November 2023
Drawing 07/B	Elevations	Bowerman Design	November 2023
Drawing 08/B	Landscape Calculation Plan	Bowerman Design	November 2023
Drawing 09/B	Sections	Bowerman Design	November 2023
Drawing 10/B	BAL FZ Bushfire Notes	Bowerman Design	November 2023
Drawing 11/B	Schedule of Finishes	Bowerman Design	November 2023
Drawing 12/B	Sections/Details	Bowerman Design	November 2023
Stormwater Plans 230882DA C01 1	Notes and Legends	Greenview Consulting	21 November 2023
Stormwater Plans 230882DAC02_1	Ground Floor Drainage Plan	Greenview Consulting	21 November 2023
Stormwater Plans 230882DAC03_1	Level 1 Drainage Plan	Greenview Consulting	21 November 2023
Stormwater Plans 230882DAC04_1	Site Stormwater Details Sheet	Greenview Consulting	21 November 2023
Landscape Plan 02923-00 Rev E	Landscape Plan	Living Image Landscape Architects	10 November 2023
BASIX Certificate No. A480328_02	Glen Bowerman	8 December 2023
Tree Report AR2023-0152AIARW	Tree Report	Arboreport	20 November 2023
BCA Report 23109	BCA Report	National BCA	29 October 2023
Bushfire Advice J23/0221	Bushfire Advice	Bushfire Consulting Services	17 November 2023

Orders

Proceedings 2023/174011

27. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA23/0016 for alterations and additions to existing dwelling at Lot 10 in Deposited Plan 30821 known as No 9 Mypolonga Avenue, Gymea Bay subject to the conditions of consent at Annexure A.

Proceedings 2023/174016

28. The Court orders:

1. Within 60 days the Applicant shall provide to Sutherland Shire Council structural certification that the new openings to the external walls are structurally adequate.

2. Within 60 days from the receipt of the structural certification referred to in (1) above, Sutherland Shire Council shall issue a Building Information Certificate (BIC23/0004) for the following works only:

1. The steel poles of the deck structure at ground level;

2. Framework for the reconfiguration of internal walls;

3. Demolition of internal walls;

4. The ground level of the excavated area; and

5. Changes to openings in external walls.

which are indicated on the plans prepared by Bowerman design dated November 2023 numbered 01/B, 02/B, 03/B, 04/B and 05/B (marked in red) for the property at 9 Mypolonga Ave, Gymea Bay.

3. The appeal is upheld.

4. Each party pay their own costs of this appeal.

……………………

P Walsh

Commissioner of the Court

Annexure A (as amended 03 April 2024) (269776, pdf)

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Amendments

03 April 2024 - By consent and pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), conditions of consent provided at Annexure A have been amended to reflect the correct DA number in Condition 3. Conditions of consent are now referenced as “Annexure A (as amended 03 April 2024)”.

Decision last updated: 03 April 2024