Urch v Canterbury-Bankstown Council

[2024] NSWLEC 1732

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urch v Canterbury-Bankstown Council [2024] NSWLEC 1732

Hearing dates:

17 July 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

Proceedings No 2023/315393:

The Court orders that:

(1) The appeal is dismissed.

Proceedings No 2023/197625:

The Court orders that:

(1) the appeal is upheld;

(2) Development Application No. DA-1028/2022 as amended, for alterations and additions to an approved (and partially constructed) dwelling including proposed swimming pool, lift, modified entry/stair works, use of existing structures and landscape works within the front setback of the property at 12 Riverview Street, Earlwood NSW 2206, being Lot B DP 420152, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – BUILDING INFORMATION CERTIFICATE APPEAL – residential premises - substantial non compliant excavation and building works on Site – agreement between the parties – s 34 agreement – resolution of both appeals – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 6.31, 8.25, 8.7

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

Canterbury Local Environmental Plan 2012, cll 4.3, 4.6

Canterbury-Bankstown Local Environmental Plan 2023

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited:

Canterbury Development Control Plan 2023

National Construction Code of Australia

Standards Australia, Australian Standard AS 2601 – 2001

Category:

Principal judgment

Parties:

Stephen John Urch (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
B Dyer (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Maddocks (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/315353
2023/197625

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This judgment involves the resolution of two Class 1 appeals in respect of a property at 12 Riverview Rd, Earlwood, NSW 2206 being Lot B DP 420152 (the Site).

2. Firstly, a Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Canterbury-Bankstown Council (the Council) of DA-1028/2022 (the DA appeal). Secondly, an appeal from a refusal by the Council of a Building Information Certificate (BIC appeal) pursuant to s 8.25 of the EPA Act.

3. The appeals were listed for a hearing under s 34C of the Land and Environment Court Act 1979 (LEC Act) commencing with an on site view. However, the parties reached agreement prior to the commencement of the on site view and requested that the Court determine the appeals by way of a dismissal of the BIC appeal and agreement under s 34(3) of the LEC Act of the DA appeal. The Court was satisfied that this was appropriate in the circumstances and the hearing proceeded based on the s 34 agreement, agreed orders, Jurisdictional Statement, and agreed conditions of consent (Agreed Conditions) as follows.

4. The agreed position is for the Court to dismiss the BIC appeal, uphold the Class 1 DA appeal and grant development consent to the proposed development with conditions at Annexure A.

5. The Development Application DA-1028/2022 (DA) seeks development consent for alterations and additions to the approved (and partially constructed) dwelling including proposed swimming pool, lift and modified entry/stair, use of existing structures and landscape works within the front setback of the Site (Proposed Development) at 12 Riverview Street, Earlwood.

BIC Proceedings

6. The parties have agreed that the BIC Proceedings are to be dismissed, with conditions of consent in the DA Proceedings that require a new BIC to be lodged with the Council once the demolitions shown on the approved plans have been carried out (see condition 19 of the Agreed Conditions).

7. The approval of the new BIC will be required before any construction certificate is issued for the construction of the development subject of the DA Proceedings (see condition 19 of the Agreed Conditions).

The Site

8. The Site is identified as 12 Riverwood Road, Earlwood (Lot B DP 420152) and is zoned R2 – Low Density Residential. The Site is on the southern side of Riverview Road, is of a regular shape and has an overall site area of 531.3 square metres.

9. Of significance is that the Site occupies a rock embankment and slopes significantly from south to north towards the Cooks River with a total fall of 15 metres from the rear boundary (RL24.0) to Riverview Road (RL9.0). See Figure 3 from the Council’s SOFAC below. There is currently no formal access to what remains of the existing premises.

History of the development

10. Development and works on the Site have a long history dating back to 2003. It is not necessary for me to repeat the entire history which is set out in the parties’ Statement and the Council’s Statement of Facts and Contentions (SOFAC). I briefly state the history of the development application before the Court as follows:

1. On 18 November 2022, the Applicant filed DA-1028/2022 for alterations and additions to the existing dwelling including proposed pool and plant room (the DA).

2. On 13 December 2022, the Applicant filed DA-93/2019/A which was a modification application to modify the development approval in DA-93/2019 including revised internal stair access, installation of a lift, and revised street entry;

3. On 23 December 2022, the Council refused the DA -1028/2022;

4. On 3 May 2023, the Council refused the Modification Application DA-93/2019/A;

5. On 5 May 2023, the principal certifier issued a Part 1 – Written direction pursuant to s 6.31 of the EPA Act on the Applicant regarding non-compliant works undertaken on the Site;

6. On 20 June 2023, a Class 1 application was filed in the Court appealing against the Council’s actual refusal of the DA-1028/2022, which is proceedings No 2023/00197625 now before the Court (the DA Proceedings).

11. The appeals were subject to a number of procedural steps following which without prejudice discussions resulted in the Applicant amending the plans and documents. The parties have agreed that the additional material provided under the Amended Application has resolved the contentions raised in the SOFAC such that the parties seek to enter into a section 34 agreement.

12. The Council has approved the amended plans and documents that support and amend the application, pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021.

Satisfaction as to Jurisdiction

13. As the Commissioner assigned to hear this matter, I am required to be satisfied that the agreed position reached is within the Court’s jurisdiction to make and grant consent under s 4.16(1)(a) of the EPA Act: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, per Preston CJ at [16]; McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183, per Basten AJA at [58].

14. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) tendered in Court in a bundle marked Ex A. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s SOFAC (Ex 3).

15. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

16. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the State Environmental Planning Policy (Resilience and Hazards) 2021, and accept the parties’ conclusion that no jurisdictional impediments.

17. A BASIX certificate No A479471 has been obtained.

18. Agreed conditions of consent deal with requirements for the demolition of a building under the Australian Standard AS 2601 – 2001 and compliance with the National Construction Code of Australia.

Canterbury Local Environmental Plan 2012

19. The parties advise that the provisions of the Canterbury Local Environmental Plan 2012 (CLEP)) that are of relevance to the DA and the Site have been taken into account in assessing the DA.

20. The Council agrees that the contentions that relate to the CLEP are resolved by amendments to the DA and the provision of documents that support the DA. The Proposed Development is assessed as not causing additional unsatisfactory amenity impacts to adjoining properties or the streetscape.

21. The Site is zoned R2 – Low Density Residential under the CLEP and the proposed development is permissible with consent. The objectives of the R2 – Low Density Residential zone are met by the proposed development.

22. I note the Proposed Development requires a clause 4.6 request to justify a contravention of the height of buildings development standard of 9.5m in cl 4.3 of the CLEP.

23. The maximum height of the proposed dwelling in the amended DA is 15.4 metres, representing a 62.1% breach of the height control. I note the building Site is on very steep land rising up from Riverview Street.

24. The Applicant relied on a clause 4.6 request to vary the building height control prepared by Tony Moody dated 31 May 2024 (Ex A tab 5).

25. The clause 4.6 request sufficiently addresses the relevant objectives, aims, standards and provisions of the CLEP, despite the proposed development not complying with clause 4.3.

26. The DA was lodged prior to the commencement of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023) and must therefore be assessed pursuant to CLEP as if the CBLEP 2023 had not commenced.

27. The parties agree that the clause 4.6 request is prepared with the relevant requirements under cl 4.6(3) of the CLEP, the development will be in the public interest because it is consistent with the objectives of the development standard and the objectives of the R2 zone, and there are adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary.

28. The Court accepts and agrees with the parties’ position and I am satisfied to make the finding that the Applicant’s written request under cl 4.6 of the CLEP to vary the height of buildings development standard under cl 4.3 of the CLEP for the Proposed Development is upheld.

Canterbury Development Control Plan 2023 (DCP)

29. The parties agree that all the related provisions of the DCP have been considered and are addressed in the Proposed Development. Where there is non-compliance with the numerical provisions of the DCP, the non-compliances do not go against the underlying objectives of the relevant section so the DCP.

Public Consultation

30. The DA was notified by the Council from 25 November 2022 to 9 November 2022. In response, the Council received one submission which dealt with the adverse impacts upon amenity of the locality including noise and privacy from the proposed pool. One person attended the on-site view. I was informed complaints have been received by the Council over the last few years with respect to the current state of the Site as depicted in Figure 3 above. Regularisation of the work Site and progress with completion of the DA is obviously desirable for the local community and the Applicant.

31. I am satisfied that the residents reasonable concerns were considered by the parties and they were accorded procedural fairness.

Conclusion

32. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed consent orders, and the decision is one that the Court could have made in the proper exercise of its functions.

Notations

33. The Court notes:

1. Canterbury-Bankstown Council as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA-1028/2022 in accordance with the following documents which were filed with the Court on 8 July 2024.

Type	Plan No.	Revision / Issue No	Plan Date (as Amended)	Prepared by
AMENDED ARCHITECTURAL PLANS
Cover Sheet	A100	J	21 May 2024	CAD Draft P/L
Residence Basix	A101	07/06/2023	CAD Draft P/L
Site Analysis Plan	A102	J	21/05/2024	CAD Draft P/L
Site Roof Plan	A103	J	21/05/2024	CAD Draft P/L
Works as Executed and Demolition Plan – Garage	A104	J	21/05/2024	CAD Draft P/L
Proposed Garage & Plan Room	A105	J	21/05/2024	CAD Draft P/L
Entertainment   Level   & Approved   Level   2    – Ground Floor	A106	J	21/05/2024	CAD Draft P/L
Approved Level 3 – First Floor & Level 4 – Second Floor	A107	J	21/05/2024	CAD Draft P/L
Eastern   +   Western Elevations	A108	J	21/05/2024	CAD Draft P/L
Elevations + Sections	A109	J	21/05/2024	CAD Draft P/L
Sections 2 + 3 + 4	A110	J	21/05/2024	CAD Draft P/L
FSR   +   Site   Areas Calculations	A112	J	21/05/2024	CAD Draft P/L
Glass   Window   &   Door Schedule	A113	J	21/05/2024	CAD Draft P/L
AMENDED LANDSCAPE PLANS
Cover   Sheet   &   Design Statement	LDA2-000	C	25/06/2024	Geoscapes
Landscape Site Plan	LDA2-101	C	25/06/2024	Geoscapes
Landscape Level 1	LDA2-102	C	25/06/2024	Geoscapes
Landscape Elevation	LDA2-201	C	25/06/2024	Geoscapes
Typical   Specification   & Details	LDA2-601	C	25/06/2024	Geoscapes
Plant Schedule & Images	LDA2-602	C	25/06/2024	Geoscapes
FURTHER DOCUMENTATION
Clause   4.6   Written Request   –   Height   of Buildings	-	-	31/05/2024	Tony Moody Planning and Development

Orders:

Proceedings No 2023/315353:

34. The Court orders that:

1. the appeal is dismissed.

Proceeding No 2023/197625:

35. The Court orders that:

1. the appeal is upheld;

2. Development Application No. DA-1028/2022 as amended, for alterations and additions to an approved (and partially constructed) dwelling including proposed swimming pool, lift, modified entry/stair works, use of existing structures and landscape works within the front setback of the property at 12 Riverview Street, Earlwood NSW 2206, being Lot B DP 420152, is determined by the grant of consent, subject to the conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 15 November 2024