Watkins v Northern Beaches Council

[2021] NSWLEC 1732

Land and Environment Court

New South Wales

Medium Neutral Citation:

Watkins v Northern Beaches Council [2021] NSWLEC 1732

Hearing dates:

Conciliation conference on 25 October 2021 and 12 November 2021

Date of orders:

30 November 2021

Decision date:

30 November 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development Application DA/2020/1772 proposing demolition works, the construction of a dwelling house, and a spa pool is granted consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979

Pittwater Local Environmental Plan 2014, cl 7.6, 7.7, 7.10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14, 15

State Environmental Planning Policy (Infrastructure) 2007, cl 45

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Sebastian Watkins (First Applicant)
Francesca Hammond (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
F Berglund (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2021/202235

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of a development application DA2020/1772 seeking development consent for the demolition of the existing dwelling house and garage, and construction of a new, 2-3 storey, 4 bedroom dwelling house with an understory double garage, and plunge pool (the Proposed Development) at 9 Wandeen Road, Clareville, NSW legally described at Lot A in Deposited Plan 393629 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 October 2021 and 12 November 2021. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. 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 grant consent to the development application.

5. 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 the provisions of a number of State Environmental Planning Policies and the relevant provisions of the Pittwater Local Environmental Plan 2014. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement regarding jurisdictional prerequisites which I summarise as follows:

1. Clause 7 of the State Environmental Planning Policy No 55 – Remediation of Land is satisfied as set out in the Assessment Report which appears at Tab 15 page 278 of the Respondent’s Bundle of Documents. I am satisfied that the contamination status of the land has been considered and that no further steps are required on the basis of the long residential history of the land.

2. The proposal was referred to Ausgrid who provided a response stating that the proposal is acceptable subject to compliance with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice. This satisfied the requirements of cl 45 of the State Environmental Planning Policy (Infrastructure) 2007 (Respondent’s Bundle of Documents Tab 15 at page 278 and 279).

3. A BASIX Certificate accompanied the Development Applicant lodged with the Respondent and the Applicant provided an updated BASIX Certificate filed with the Court on 18 November 2021 which satisfies cl 6 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. The Assessment Report (Respondent’s Bundle of Documents at Tab 15) satisfactorily addresses cll 13, 14 and 15 of the State Environmental Planning Policy (Coastal Management) 2018.

5. There are a number of relevant provisions of the Pittwater Local Environmental Plan 2014 (PLEP) which are satisfied as follows:

1. Clause 7.6 regarding biodiversity protection is satisfied by the amended proposal as agreed by each party’s landscaping expert. I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact.

2. Clause 7.7 provides for geotechnical hazards and this clause is satisfied following a geotechnical investigation which is included in the Respondent’s Bundle of Document at Tab 10 starting at page 199. I am satisfied as required by cl 7.7(4) of the PLEP that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development.

3. The Respondent advises the Court that all services required by cl 7.10 are available to the property which I accept and am satisfied that the essential services for the development are available.

4. The objectives of E4 Zone are satisfied by the amended proposal as agreed by each party’s experts in landscaping and town planning.

6. Notification of the Proposed Development pursuant to s 4.15(1)(d) of the EPA Act was undertaken and the two submissions received by the Respondent are included in the Respondent’s Bundle of Documents filed with the Court on 15 October 2021 (Tabs 11 and 12).

6. 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. I refer to and adopt the reasons given by the parties.

7. 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.

8. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 to allow the applicant to amend Development Application DA/2020/1772 the subject of these proceedings with the following amended architectural plans prepared by Action Plans dated 1 November 2021 drawing No.s DA00 Drawing List (Revision H), DA01 Site Analysis (Revision H), DA02 Site/Roof/Sediment Erosion/Waste Management/Stormwater Concept Plan (Revision H), DA03 Existing Ground Floor Plan (Revision H), DA04 Proposed Garage Floor Plan (Revision H), DA05 Proposed Ground Floor Plan (Revision H), DA06 Proposed First Floor Plan (Revision H), DA07 North/East Elevation(Revision H), DA08 South Elevation (Revision H), DA09 West Elevation (Revision H), DA10 Long/Cross Section (Revision H), DA11 Pool Plan; DA12 Area Calculations (Revision H), DA13 Sample Board (Revision H), DA14 Existing Boundary Fence Shadows – 0900 (Revision H), DA15 Existing Boundary Fence Shadows – 1200 (Revision H), DA16 Existing Boundary Fence Shadows – 1500 (Revision H), DA17 Winter Solstice 9AM (Revision H), DA18 Winter Solstice 12PM (Revision H), DA19 Winter Solstice 1PM (Revision H), DA20 Winter Solstice 2PM (Revision H), DA21 Winter Solstice 3PM (Revision H), DA30 Height Blanket Perspectives (Revision H), DA31 Cut Perspectives (Revision H), DA32 BASIX Commitments (Revision H), DA33 BASIX Commitments (Revision H);

2. the parties have uploaded on the NSW Planning Portal the amended application on 10 November 2021. The portal reference number is PEH-866; and

3. the Applicant filed the amended application with the Court on 18 November 2021.

Orders:

9. The Court orders that:

1. The appeal is upheld;

2. Development Application DA/2020/1772 proposing demolition works, the construction of a dwelling house, and a spa pool is granted consent subject to the conditions set out in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (255999, pdf)

**********

Decision last updated: 30 November 2021