Vicente v The Council of the City of Sydney

[2021] NSWLEC 1308

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Vicente v The Council of the City of Sydney [2021] NSWLEC 1308

Hearing dates:

Conciliation conference on 2 February 2021, 11 March 2021, 26 April 2021 and 7 May 2021.

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application number D/2020/193 for construction of a concrete in-ground swimming pool and removal of an existing tree in the rear yard at 26 Harold Street, Newtown, in accordance with the amended conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – tree removal –swimming pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Local Environmental Plan 2012

Texts Cited:

City of Sydney’s Urban Forest Strategy

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Cassie Vicente (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
D Parish (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
The Council of the City of Sydney (Respondent)

File Number(s):

2020/207087

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant is appealing the deemed refusal of Development Application D/2020/193 (DA) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. Pursuant to s 8.11(1) of the EPA Act the Applicant can appeal a deemed refusal 40 day after the DA was lodged with The Council of the City of Sydney (Council) as provided in cl 113 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulations).

3. Pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act) the appeal is classified as Class 1 proceedings.

4. The power to determine the DA appeal is pursuant to s 4.16 of the EPA Act.

Background

5. The subject site is located at 26 Harold Street, Newtown and is legally described as Lot 1 in Deposited Plan 741497, and Lot 1 in Deposited Plan 924246 (the site). The site is rectangular, with an area of approximately 270m². It has a primary street frontage to Harold Street along the north boundary.

6. The surrounding land uses are a combination of residential, commercial, education establishment and recreation. The site is zoned R1 General Residential Zone under the Sydney Local Environmental Plan 2012 (SLEP2012).

7. The DA is for the removal of an existing tree, called Tree 1 (Triadica sebifera or Chinese Tallow) within the rear yard of the dwelling house and the installation of an in-ground swimming pool. Tree 1 is estimated to be 14m in height and provides a canopy cover of approximately 35% of the site.

8. Tree 1 is in good health and contributes positively to the extent of canopy cover in the locality and the amenity of the surrounding properties. Council considered that the removal of Tree 1 was inconsistent with:

1. The objectives of the Sydney Development Control Plan 2012 (SDCP2012), which seek to maximise the quality and quantity of healthy tree canopy coverage across the Local Government Area (LGA).

2. The aims of the State Environmental Planning policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) Part 1 cl 3(a) and (b) which seek to protect the biodiversity values and preserve the amenity of non-rural areas through the preservation of trees and other vegetation.

3. The objectives of The City of Sydney’s Urban Forest Strategy in that development is to “Protect and maintain the existing urban forest’ and to ‘Increase canopy cover’ across the entire LGA.

9. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 February 2021, 11 March 2021, 26 April 2021 and 7 May 2021. I presided over the conciliation conference.

10. 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, and granting consent to the DA subject to conditions.

11. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to uphold the appeal and grant the DA subject to conditions. 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 to be:

1. The DA was lodged with the Respondent on 5 March 2020.

2. The DA was publicly notified and advertised for a period of 14 days from 13 to 28 March 2020.

3. No objectors’ submissions were received to the DA.

4. On 15 June 2020 Council sent a letter to the Applicant requesting her to withdraw the DA.

5. On 14 July 2020 the Applicant commenced Class 1 proceedings in this Court.

6. The parties participated in the s 34 Conciliation Conference on the dates set out above. During the s 34 conference the Applicant provided the following further information to the Council:

1. An Arboricultural Impact Assessment including root mapping of Tree 1 prepared by Urban Forestry Australia;

2. accurate pool plans to resolve discrepancies with dimensions; and

3. landscape plans identifying the proposed landscaping to the rear yard, including plant selection.

7. The proposed swimming pool is permissible within the R1 General Residential Zone and is consistent with the objectives of the zone.

8. Subject to conditions the removal of Tree 1 (the Chinese Tallow) and replacement with an appropriate tree species is consistent with and meets the objectives of SDCP2012.

9. The additional material provided by the Applicant demonstrates the proposal is consistent with the relevant planning controls and will have no adverse amenity or environmental impacts on the locality and therefore is in the public interest in accordance with s 4.15 of the EPA Act.

Legislation

Environmental Planning and Assessment Act 1979

4.15   Evaluation

(cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a)  is not entitled to take those standards into further consideration in determining the development application, and

(b)  must not refuse the application on the ground that the development does not comply with those standards, and

(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a)  subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note—

The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4).

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.

(5)  A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).

(6) Definitions In this section—

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

4.16   Determination

(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(8)    (Repealed) ……

(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

(13), (14)    (Repealed)

8.7   Appeal by applicant—applications for development consent

(cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2)  For the purposes of this section, the determination of an application by a consent authority includes—

(a)  any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b)  any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3)  An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

8.11   Circumstances in which consent taken to have been refused for purposes of appeal rights

(cf previous s 82)

(1)  A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.

(2)  Subsection (1) does not prevent a consent authority from determining an application after the end of that period.

(3)  Any such determination of an application does not affect the continuation or determination of an appeal made under this Division against the deemed refusal of consent (or modification of consent) under subsection (1).

(4)  If any such determination of an application results in the grant of development consent (or the modification of development consent), the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have the appeal withdrawn at any time prior to the determination of the appeal.

Environmental Planning and Assessment Regulation 2000

113   Applications taken to be refused

(cf clause 70B of EP&A Regulation 1994)

(1)  For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being—

(a)  40 days, except in the case of development referred to in paragraph (b) or (c), or

(b)  60 days, in the case of—

(i)  designated development, or

(ii) integrated development (other than integrated development that, pursuant to Part 5 of State Environmental Planning Policy (Primary Production and Rural Development) 2019, is Class 1 aquaculture development), or

(iii)  development for which the concurrence of a concurrence authority is required, or

(iv)  a development application that is accompanied by a biodiversity development assessment report and that proposes a discount in the biodiversity credits required under the report to be retired, or

(c)  90 days, in the case of State significant development.

(2)  The deemed refusal period is measured from—

(a)  the date the development application is lodged on the NSW planning portal, or

(b) the date the Commission complies with clause 6 of Schedule 2 to the Act, if a public hearing has been conducted by the Independent Planning Commission into development other than development the subject of a development application to which section 8.7 of the Act does not apply, or part of any such development.

……

Note—

This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application.

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

……

12. 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.

1. The DA was lodged with Council on 5 March 2020, and notified by Council for 14 days from 13 to 28 March 2020. Council did not receive any objector’s submissions in relation to the DA.

2. The Applicant appealed the deemed refusal of the DA in accordance with the time provisions for a deemed refusal in s 8.11(1) of the EPA Act, and within the time provided in cl 113(1) of the EPA Regulations. The appeal was filed pursuant to s 8.7(1) of the EPA Act.

3. The Council’s contention included the proposed removal of Tree 1 (Chinese Tallow tree); the unquantified impacts on a tree in the adjacent property to the rear; lack of accurate pool plans and detailed landscaping plan. The Applicant satisfied Council’s contentions by:

1. lodging further information being an Arboricultural Impact Assessment by Catriona Mackenzie of Urban Forestry dated 23 February 2021 which included root mapping of the tree in the adjacent property, and recommended replacement(s) for Tree 1. The further information satisfied Council in relation to the objectives of the SDCP2012 in relation to quality and quantity of canopy in the area; the aims of the Vegetation SEPP by protecting the biodiversity values and preserving the amenity of the non-rural area; and the objectives of The City of Sydney’s Urban Forest Strategy in that the   proposed development will protect and maintain the existing    urban forest and increase canopy cover across the entire LGA. The canopy of the replacement tree for Tree 1 will meet all the above objectives; and

2. lodging detailed plans which included the pool and surrounding landscaping.

4. Pursuant to SLEP2012 the proposed swimming pool is permissible within the R1 General Residential Zone and is consistent with the objectives of the zone.

5. The additional material provided by the Applicant demonstrates that the proposal is consistent with the relevant planning controls as referred to in s 4.15 of the EPA, and worthy of a determination granting consent in accordance with s 4.16 of the EPA Act.

13. 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.

14. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application number D/2020/193 for construction of a concrete in-ground swimming pool and removal of an existing tree in the rear yard at 26 Harold Street, Newtown, in accordance with the amended conditions in Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (210069, pdf)

Plans (1751556, pdf)

**********

Amendments

01 June 2021 - Added "Plans" attachment.

Decision last updated: 01 June 2021