The Trustee for the Resland Discretionary Trust v Bayside Council

[2024] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for the Resland Discretionary Trust v Bayside Council [2024] NSWLEC 1160

Hearing dates:

Conciliation conference on 19-20 March 2024

Date of orders:

09 April 2024

Decision date:

09 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 (3) within 7 days of the date of this Order.

2) The appeal is upheld.

3) Development consent is granted to Development Application No. DA-2023/129 for demolition of existing structures and construction of a two (2) storey dual occupancy, each with a roof terrace, otherwise known as 50 Alfred Street, Ramsgate Beach NSW 2217, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

Bayside Local Environmental Plan 2021, cl 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.11

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 2.11 and s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Div 5, s 2.48

Category:

Principal judgment

Parties:

The Trustee for the Resland Discretionary Trust (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
P Brown (Solicitor)(Respondent)

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

File Number(s):

2023/268144

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 deemed refusal of Development Application No. DA-2023/129, for the demolition of existing structures and construction of a two storey detached dual occupancy with rooftop terrace and access from Florence Street and Alfred Street (the DA) at 50 Alfred Street Ramsgate Beach, legally described as Lot 3 DP 17714 (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19-20 March 2024. I have presided over the conciliation conference.

3. 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 development application and granting development consent to the amended development application subject to conditions.

4. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA-2023/129 (amended DA) in accordance with the plans and documents listed below:

• Further Amended Architectural Plans (Revision 8) dated 20 March 2024;

• Further Amended Landscape Plans (Revision A) dated 20 March 2024;

• Amended Stormwater Plans (Revision D) dated 13 March 2024; and

• BASIX Certificate Number 1320449M_04 dated 21 March 2024.

5. The amended plans were filed with the Court on 22 March 2024. The main amendments are summarised as follows:

• Change from a detached to attached dual occupancy;

• Increase to the rear setback;

• Reduction of the roof deck area and removal of the north-eastern component;

• Changes to the driveway and relocation of substation; and

• Incorporation of various privacy measures.

6. Accompanying the submitted 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, subject to conditions of consent.

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 original DA was lodged to the Respondent on 30 May 2023. I am satisfied that owners consent accompanied the amended DA for the subject site.

11. The Respondent notified the development application from 7 June 2023 to 22 June 2023. One objection with a petition was received by the Respondent. At the on-site viewing, one objector expressed their concerns orally and provided further written submissions to the parties.

12. In reaching agreement, the parties have considered the relevant concerns raised. Relevantly, I note the reasons for approval within Annexure A, in particular reason 6.

Bayside Local Environmental Plan 2021

13. The subject site is zoned R3 Medium Density Residential pursuant to the Bayside Local Environmental Plan 2021 (BLEP), where the proposed development is permissible with consent. In accordance with cl 2.3, I have had regard to the objectives of the zone.

14. Clause 2.7 requires consent for demolition, as proposed.

15. Clause 4.3 Height of buildings applies to the site, setting a maximum height of 8.5m. The parties agree and I accept that the proposal is below the maximum height limit at 8.5m on the basis of the section plans (DA5.01 – DA5.07 prepared by JSA Studio) dated 20 March 2024.

16. Clause 4.4 Floor space ratio (FSR) applies to the subject site, which permits a maximum FSR of 0.55:1. The parties agree and I accept that the proposal does not exceed the maximum permitted FSR on the basis of the calculations shown on architectural plan (DA2.02 prepared by JSA Studio) dated 20 March 2024 at 0.55:1.

17. Clause 6.1 Acid sulfate soils applies to the site, being within Class 4 soils. I accept the agreement of the parties that water table will not be lowered and no works are proposed more than 2m in depth on the basis of the section plans (DA5.01 – DA5.07 prepared by JSA Studio) dated 20 March 2024. The provisions of 6.2(3) are therefore not engaged.

18. Clause 6.3 Stormwater and water sensitive urban design applies to the site. The parties agree and I accept that the provisions are satisfied on the basis of the civil engineers’ evidence in the joint expert report filed 14 March 2024, the stormwater plans prepared by Engineering Studio Civil accompanying the amended DA, the jurisdictional statement and conditions of consent at Annexure A in relation to water.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX)

19. The parties agree and I accept that the amended development application is accompanied by an amended BASIX Certificate (number 1320449M_04) that satisfies the provisions of SEPP BASIX.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

20. The provisions of s 4.6 of SEPP RH apply to the site. As described in the Statement of Environmental Effects prepared by ARPS Pty Ltd dated April 2023 (SEE) the site has a long history of residential use. I accept the parties agreement that the provisions of s 4.6 of SEPP Resilience have been adequately addressed.

21. Chapter 2 Coastal management of SEPP RH applies to the site, as the site is mapped on the edge of the Coastal Use Area map. The parties agree and I accept on the basis of the jurisdictional statement, design of the development shown on the architectural plans and location away from the foreshore and beach that the provisions of s 2.11(1) have been met by the amended DA.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Subsection 2.48 Development likely to affect an electricity transmission or distribution network applies to the site. The DA was referred to Ausgrid and the two responses received have been incorporated into the conditions of consent at Annexure A.

Conclusion

23. 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.

24. 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.

25. 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:

26. The Court orders:

1. The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-2023/129 for demolition of existing structures and construction of a two (2) storey dual occupancy, each with a roof terrace, otherwise known as 50 Alfred Street, Ramsgate Beach NSW 2217, subject to the conditions of consent in Annexure ‘A’.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 09 April 2024