Tracy v Shoalhaven City Council

[2024] NSWLEC 1229

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tracy v Shoalhaven City Council [2024] NSWLEC 1229

Hearing dates:

Conciliation conference held on 12, 15 April 2024

Date of orders:

03 May 2024

Decision date:

03 May 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to amend the development application (DA22/2101) in accordance with the updated plans identified in Condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development application DA22/2101, for the construction of a detached residential shed, is approved subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new detached shed – amended plans – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.13, 4.15, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 23

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

Shoalhaven Local Environmental Plan 2014, cll 2.3, 4.3, 7.2, 7.11

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

Glenn Gerard Tracy (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
B Douglas-Baker (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2023/288954

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the actual refusal of development application DA22/2101. The development application, as amended, seeks consent for the construction of a detached shed with a floor area of 110.5m² at 14 Jay Street, Culburra Beach (Lot 7 DP 246986).

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 12 April 2024. I presided over the conciliation conference. At the conciliation conference the parties reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. 

3. In summary the following amendments were made to the development application:

1. Amendment to the rear setback to 1.2m,

2. Changed roof pitch,

3. Inclusion of a lower roof section over the western portion of the proposed shed,

4. Reduction in the overall height of the proposed shed,

5. Inclusion of landscaping.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I am satisfied for the reasons that follow:

1. The Applicant is the registered proprietor of the site, and has given consent to the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. For the purposes of s 4.13 of the EPA Act, the development application was notified pursuant to the Respondent’s ‘Community Consultation Policy for Development Applications (Including subdivision)’ by letter to proximate residents on 21 October 2022. A total of six submissions were received by the Respondent objecting to the development. Further, at the commencement of the conciliation the Court was addressed by two members of the public. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

3. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The Respondent Council formed a view that the site was suitable for residential use when it granted development consent for the construction of a single dwelling on 9 May 2022. The parties advise the land has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

4. The site is zoned R2 Low Density Residential pursuant to Shoalhaven Local Environmental Plan 2014 (LEP 2014). Development for the purposes of a shed for residential purposes is a permissible use with consent. As required by cl 2.3 of LEP 2014 in determining the development application I have given consideration to the objectives of the zone.

5. The site is subject to an 8.5m height of building standard pursuant to cl 4.3 of LEP 2014. The development application is compliant with the maximum height of development standard.

6. The site is identified as being affected by Class 5 acid sulfate soils on the Acid Sulfate Soil Map in LEP 2014. The proposed development involves minimal excavation and I am satisfied it will not result in lowering of the water table below 1m Australian Height Datum on adjacent Class 1,2,3 or 4 land.

7. As required by cl 7.2 ‘Earthworks’ of LEP 2014, in granting consent to the development, with the assistance of the amended Stormwater plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application.

8. Clause 7.9 ‘Essential Services’ of LEP 2014, requires the consent authority to be satisfied that the site has access to all essential services for the development including water, electricity, management of sewage, drainage and suitable vehicular access. On the basis of the recent development of an approved residential dwelling on the land and the agreed position of the parties, I am satisfied that the essential services required for the proposed development are available to the site.

9. Shoalhaven Development Control Plan 2014 (DCP 2014) applies to the site. The documents filed with the application detail the compliance of the proposed development with the stormwater provisions in Chapter G2 of DCP 2014. No other provisions of DCP 2014 are raised by the parties. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. Leave is granted for the Applicant to amend the development application (DA22/2101) pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 in accordance with the updated plans identified in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development application DA22/2101, for the construction of a detached residential shed, is approved subject to the conditions of consent set out in Annexure A.

……………………….

D Dickson

Commissioner of the Court

Annexure A

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Amendments

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

Decision last updated: 08 May 2024