Wang v Strathfield Municipal Council

[2025] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wang v Strathfield Municipal Council [2025] NSWLEC 1040

Hearing dates:

Conciliation conference on 9 and 10 December 2024

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) Leave is granted to rely on the amended plans and documents referred to in Annexure A.

(2) The appeal is upheld.

(3) Development Application No DA2023/129 for Torrens title battleaxe subdivision, demolition, and construction of 2 x two storey dwellings each with basement parking and swimming pool at 38 Rochester Street, Strathfield (Lot 1 DP 950953), is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – Torrens title battleaxe subdivision, two storey dwelling houses, basement parking and swimming pools – conciliation conference – agreement reached – orders made

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38, Sch 7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1

Strathfield Local Environmental Plan 2012, cll 2.3, 2.7, 4.1, 4.3, 4.4C, 5.10, 5.21, 6.1, 6.2, 6.4

Category:

Principal judgment

Parties:

Jianzhong Wang (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
A Chryssodroides (Solicitor) (Applicant)
(Respondent)

Solicitors:
Piper Alderman (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/244280

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application No 2023.129 for Torrens title battleaxe subdivision, demolition, and construction of a two storey dwelling with basement parking, and swimming pool on each proposed allotment at 38 Rochester Street, Strathfield (Lot 1 DP 950953) (the site) by Strathfield Municipal Council. In addition landscaping works, earthworks (including excavation for a basement on each allotment), retaining walls, stormwater drainage infrastructure, and tree removal are proposed. Notably the proposed development includes pruning of a large tree on a neighbouring property at 47 Beresford Road for which owner’s consent has been provided.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, commenced on 9 December 2024 and concluded on 10 December 2024.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports, the Council’s bundle of documents filed in the proceedings and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 10 December 2024 and are listed under Condition 1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The development application is made by the owner of the site therefore in accordance with s 23 of the EPA Reg owner’s consent is not required. As noted above the proposed development also includes pruning of a large tree on a neighbouring property at 47 Beresford Road for which owner’s consent has been provided.

2. The Respondent notified the original development application between 30 October to 13 November 2023. Four (4) submissions were received. Further an oral submission was heard at the commencement of the conciliation conference from an adjoining neighbour at 18 Broughton Street. In reaching agreement, the parties have considered the concerns raised in the submissions.

Strathfield Local Environmental Plan 2012

7. The development works are for the purposes of Torrens title subdivision and residential dwelling houses and ancillary development, which are uses permissible in the R2 – Low Density Residential zone in which the site is located pursuant to Strathfield Local Environmental Plan 2012 (SLEP).

8. The development is consistent with the objectives of the R2 – Low Density Residential zone as required by cl 2.3 of SLEP including notably ‘to provide for the housing needs of the community within a low density residential environment’.

9. As required by cl 2.7 of SLEP consent is sought as part of the subject application for the proposed demolition.

10. The proposed subdivision complies with the minimum lot size development standard set out in clause 4.1 of SLEP which provides that a lot must have a minimum area of 560m². The proposed allotments have a lot size of 560.05m² and 601.23m² respectively.

11. The proposed development complies with the maximum height of building development standard set out in cl 4.3 of SLEP having a height substantially less than the maximum permissible of 9.5m as shown on the amended architectural plans.

12. The proposed development complies with the maximum floor space ratio development standard set out in cl 4.4C of SLEP having a floor space ratio less than the maximum permissible of 0.65:1 as shown on the amended architectural plans.

13. In accordance with clause 5.10, on the basis of the parties’ agreement, I am satisfied that consideration has been given to the effect of the proposed development on the heritage significance of a heritage item in the vicinity.

14. Council has advised that the site is identified as being flood affected therefore clause 5.21 of SLEP applies. Subsection (2) requires that development consent must not be granted unless the consent authority is satisfied of the matters listed. Further subsection (3) requires specific matters to be taken into consideration. An updated Flood Impact Assessment Report has been submitted which confirms that the proposed floor levels satisfy the freeboard requirements and which addresses the relevant matters contained in cl 5.21(2) and (3) in respect of flood function and behaviour, risk and environmental impact. Having regard to the proposed design and floor levels, the flood report and Council’s assessment I am also satisfied in respect of the relevant matters.

15. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and accordingly no further assessment is required in accordance with cl 6.1 of SLEP.

16. Consideration has been given to the matters required to be considered prior to the granting of development consent in respect of earthworks under cl 6.2(3) of SLEP. In this respect it is noted that a geotechnical report has been submitted with the Class 1 application which includes recommendations in respect of excavation, a sediment and erosion control plan has been provided and conditions of consent are proposed.

17. In accordance with cl 6.4(1) of SLEP essential services are available or adequate arrangements have been made to make them available to the proposed development including in respect of both Lots A and B. This includes water, electricity, sewerage, waste removal and recycling, stormwater drainage and vehicular access as required.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required. Standard conditions are to be applied in respect of unexpected finds.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to tree removal. No tree removal is proposed as part of the subject application however an Arboricultural Impact Assessment (prepared by DJD Tree Consultancy dated 9 December 2024) has been submitted which recommends measures to limit impacts on nearby trees. Conditions are proposed to require compliance with these measures in addition to other standard tree protection conditions. Having regard to the conditions, satisfaction is achieved that the proposal is consistent with the requirements of Chapter 2 of the BC SEPP.

20. The site is located within the Sydney Harbour Catchment in accordance with BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity; aquatic ecology, flooding, recreation and public access and total catchment management.

21. I am satisfied on the basis of the agreement of the parties that the stormwater plans for the proposal ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); and the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. The original application was accompanied by a BASIX certificate (Cert No. 1042736M_02 dated 28 September 2023) prepared by Paul & David Consulting as required by s 27 of the EPA Reg. An updated BASIX Certificate will be required as a condition of consent prior to the issue of a construction certificate (condition 9).

Conclusion

23. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 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” (s 34(3)(b)).

24. In making the orders to give effect to the agreement between the parties, 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.

Orders

25. The orders of the Court are:

1. Leave is granted to rely on the amended plans and documents referred to in Annexure A.

2. The appeal is upheld.

3. Development Application No DA2023/129 for Torrens title battleaxe subdivision, demolition, and construction of 2 x two storey dwellings each with basement parking and swimming pool at 38 Rochester Street, Strathfield (Lot 1 DP 950953), is determined by the grant of consent subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A

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Decision last updated: 23 January 2025