Turner v Northern Beaches Council

[2023] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:

Turner v Northern Beaches Council [2023] NSWLEC 1219

Hearing dates:

Conciliation conference on 27 and 28 April 2023

Date of orders:

9 May 2023

Decision date:

09 May 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA2021/2296 for the partial demolition of the existing dwelling and construction of a new dwelling comprising the retention of portions of the existing dwelling and a new studio over the existing garage at 26 Iluka Road, Palm Beach, is determined by the grant of consent subject to the conditions of consent in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environment Planning and Assessment Regulation 2021, cl 37
Pittwater Local Environmental Plan 2014, cl 2.3

Land and Environment Court Act 1979, s 34

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

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

Texts Cited:

Northern Beaches Council, Northern Beaches Community Participation Plan (2019)

Pittwater 21 Development Control Plan

Category:

Principal judgment

Parties:

Orlaith Turner (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
L Nupuri (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/343687

Publication restriction:

No

Judgment

1. COMMISSIONER: Orlaith Turner (the Applicant) has appealed the imposition of certain conditions imposed by Northern Beaches Council (the Respondent) with its grant of consent to Development Application No DA2021/2296 for the partial demolition of the existing dwelling and construction of a new dwelling comprising the retention of portions of the existing dwelling and a new studio over the existing garage (the Proposed Development) at 26 Iluka Road, Palm Beach (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified between 8 December 2021 and 13 January 2022, under the provisions of Northern Beaches Community Participation Plan, 2019, and three submissions were received in response to that notification.

4. On 27 and 28 April 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site inspection had been undertaken prior to the commencement of the conciliation conference and no objector submissions were received on-site during the inspection.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

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. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the historic use of the Subject Site has been residential and the Proposed Development does not propose a change to the residential use of the land;

2. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development; and

3. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal.

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP Basix):

1. the Applicant has provided a BASIX certificate A438996 dated 10 November 2021 in relation to the Proposed Development; and

2. I am satisfied that the relevant provisions of SEPP Basix have been satisfied in relation to the Proposed Development.

3. in relation to the provisions of Pittwater Local Environmental Plan 2014 (PLEP):

1. the Subject Site is zoned C4 Environmental Living under the provisions of cl 2.3 of PLEP and a dwelling house, as proposed by the Applicant, is permissible with consent in this zone;

2. the Parties have advised, and I am satisfied, that the objectives of the C4 Environmental Living zone have been considered in relation to the assessment and determination of the Applicant’s development application; and

3. the Applicant’s development application has been previously assessed by the Respondent, which granted conditional consent to the application;

1. the Respondent has provided to the Court the assessment report presented to Council in relation to the Proposed Development, and

2. having reviewed that document I am satisfied that there are no matters within PLEP that would provide a basis to refuse the grant of consent.

4. in relation to the provisions of Pittwater 21 Development Control Plan (PDCP):

1. the Applicant’s appeal concerns the imposition, by the Respondent, of certain conditions with a grant of consent to the Proposed Development, and relate to the application of the following provisions of Part D of PDCP in relation to the Palm Beach locality:

1. Part D12.1 concerning “Character as viewed from a public place”;

2. Part D12.5 concerning “Front Building Line”

3. Part D12.10 concerning “Landscaped Area – Environmentally Sensitive Land”;

4. Part D12.11 concerning “Fences – General”.

2. the Parties have considered the relevant provisions of PDCP and they agree, and I am satisfied, that the Proposed Development is compliant with the provisions of the relevant parts of PDCP or if not, the Proposed Development achieves the objectives of the controls in PDCP such that it merits flexibility in the application of the relevant controls pursuant the provisions of cl 4.15(3A)(b) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s C4 Environmental Living zoning in determining the Applicant’s development application;

2. the Applicant’s development application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act, including in relation to the submissions received in response to notification, which have been considered by the Parties in reaching agreement;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. 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.

13. The Court notes that:

1. The Northern Beaches Council, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA2021/2296 in accordance with the documents listed in Annexure ‘A’ (‘Amended Application’).

2. The Applicant filed the Amended Application with the Court on 28 April 2023.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA2021/2296 for the partial demolition of the existing dwelling and construction of a new dwelling comprising the retention of portions of the existing dwelling and a new studio over the existing garage at 26 Iluka Road, Palm Beach, is determined by the grant of consent subject to the conditions of consent in Annexure ‘B’.

M Chilcott

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 09 May 2023