Wehbe v Cumberland Council

[2021] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wehbe v Cumberland Council [2021] NSWLEC 1136

Hearing dates:

Conciliation conference on 12 March 2021

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application No. DA2020/0036 for the demolition of all existing buildings at 6-8 Factory Street, Granville is approved subject to the conditions at Annexure “A”.

Catchwords:

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

Legislation Cited:

Draft Cumberland Local Environmental Plan 2020

Draft State Environmental Planning Policy (Environment)

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Heritage Act 1977

Heritage Regulation 2012

Land and Environment Court Act 1979, s 34

Parramatta Local Environmental Plan 2011, cll 2.3, 2.7, 5.10, 6.1, 6.2, 6.3

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

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 3, 20, 21, 22, 23, 24, 25, 26

Category:

Principal judgment

Parties:

Louie Wehbe (First Applicant)
Jamie Wehbe (Second Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicants)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicants)
Cumberland Council (Respondent)

File Number(s):

2020/317166

Publication restriction:

No

Judgment

Background

1. These proceedings concern an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Cumberland Council's refusal of Development Application No. 2020/0036 (DA).

2. The subject site comprises Lot 1 in DP 844490 and has a street address of 6-8 Factory Street, Granville.

3. The DA seeks consent for the demolition of all buildings on site, inclusive of heritage item I109 as listed within Schedule 5 of the Parramatta Local Environmental Plan 2011 (LEP).

4. The application is supported by a structural engineering report prepared by Romeika and Gatsos dated 17 February 2021, and a joint heritage statement dated February 2021. Relevantly, the structural engineer has assessed that the building cannot be retained in its present condition and the dismantling of the building and its reconstruction is required. On that basis, the heritage experts have agreed, due to its low integrity and condition, that the significance of the building is severely diminished, and demolition is appropriate subject to an archival recording to Heritage Office standards (Joint Heritage Report, p 5).

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 March 2021. I presided over the conciliation conference.

6. At the conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision involved upholding the appeal and authorising the demolition of the existing buildings at 6-8 Factory Street, Granville in accordance with the conditions at Annexure A.

Jurisdictional considerations

7. Based on evidence I am satisfied that I have power to grant consent to this DA for the following reasons:

State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

8. Clause 7 of SEPP 55 nominates matters that must be considered before a development application is determined.

9. In relation to cl 7(4) I am satisfied that:

1. the land is not within an investigation area;

2. development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land; and

3. historic zoning controls for the land did not make lawful the carrying out of activities nominated in Table 1.

10. As the site is not known to be contaminated and does not adjoin land known to be contaminated I am satisfied that SEPP 55 does not preclude consent to this DA.

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP)

11. Pursuant to cl 3(2), the site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor it is shown as containing a heritage item.

12. Clause 20(a) requires matters referred to in Part 3 Division 2 of the SREP be taken into consideration by the consent authority before granting development consent. The parties’ position on Division 2 matters, by clause number, is as follows:

• Clause 21: The development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection. Subclauses (a)-(i) raise no matters that warrant refusal of the development.

• Clause 22: The development will have no impact upon public access to, and use of, the foreshore and waterway.

• Clause 23: The development has no implications for a working harbour.

• Clause 24: The development has no implications for use of the waterways or foreshore.

• Clause 25: The development has no impact upon the scenic quality of the waterways and foreshore.

• Clause 26: The development has no impact upon views.   

13. Clauses 27 (boat storage facilities), 27A (floating boat platforms) and 27B (mooring pens) have no relevance to the development.

Draft State Environmental Planning Policy (Environment) (draft SEPP)

14. The draft SEPP relates to the protection and management of the natural environment and aims to simplify planning procedures for a number of water catchments, waterways, urban bushland areas and the Willandra Lakes world heritage property through the consolidation of seven existing environmental planning instruments, including the SREP.

15. Subject to the conditioning and implementation of usual sediment and erosion control measures, the parties’ position is that the purpose and objectives of the draft SEPP will be achieved.

Parramatta Local Environmental Plan 2011

16. The site is zoned R2 Low Density Residential.

17. Clause 2.3(2) provides that regard must be had to the zone objectives. The R2 zone objectives are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

• To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

18. The development, being for demolition only, is neutral to the zone objectives.

Permissibility

19. Demolition is permissible pursuant to cl 2.7.

Principal Development Standards

20. Development standards for minimum subdivision lot size (cl 4.1), building height (cl 4.3) and floor space ratio (cl 4.4) apply to the site but have no applicability to the development the subject of the proceedings.

Heritage

21. The site is listed within Schedule 5 Environmental Heritage as item No. I109, being a former shop with local heritage significance.

22. Development consent is required under cl 5.10(2)(a)(i) of the LEP on the basis that demolition of a heritage item is sought.

23. The objective of cl 5.10 are:

(a)    to conserve the environmental heritage of Parramatta,

(b)    to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c)    to conserve archaeological sites,

(d)    to conserve Aboriginal objects and Aboriginal places of heritage significance.

24. Clause 5.10(4) obliges the consent authority, before granting consent, to consider the effect of the proposed development on the heritage significance of the item or area concerned. Subject to a condition of consent requiring the undertaking of a photographic survey of the building, the parties are satisfied that demolition represents a satisfactory heritage outcome.

25. Subclauses 5.10(5) and (6) enable the consent authority to require, prior to granting consent, the preparation of a heritage management document and / or the submission of a heritage conservation management plan. The Cumberland Local Planning Panel, as the consent authority, did not avail itself of those abilities. The parties do not say such documents need to be prepared.

26. Subclauses (3), (7), (8), (9) and (10) of cl 5.10 of the LEP have no relevance to the proposed development.

Other Miscellaneous and Local Provisions

27. The site is not marked on:

• the Additional Permitted Uses Map (cl 2.5);

• the Land Reservation Acquisition Map (cl 5.1);

• the Natural Resources - Biodiversity Map (cl 6.4);

• the Natural Resources – Riparian Land and Waterways Map (cl 6.5);

• the Natural Resources – Landslide Risk Map (cl 6.6);

• the Foreshore Building Line Map (cl 6.7);

• the Design Excellence Map (cll 6.12 and 6.13);

• the Key Sites Map (cll 6.10, 6.12, 6.16, 6.18, 6.19 and 7.10); or

• the Additional Local Provisions Map (part 7);

• the Intensive Urban Development Area Map (part 8).

28. The site is marked as Class 5 land on the Acid Sulfate Soils Map and is within 500m of Class 4 land. As the demolition work is not taking place below 5m AHD, development consent is not required under cl 6.1.

29. Development consent for earthworks is not required (cl 6.2(b)).

30. The site is not at or below the flood planning level and accordingly cl 6.3 does not apply.

Draft Cumberland Local Environmental Plan 2020 (draft Cumberland LEP)

31. Under the draft Cumberland LEP, the site is proposed to be zoned R2 Low Density Residential.

32. Demolition remains permissible under the draft Cumberland LEP.

33. The draft Cumberland LEP proposes to carry over existing heritage listings. A review of the appropriateness of existing listings is not being carried out as part of the comprehensive LEP making process.

Merit Considerations

34. In light of evidence the works that would be required to retain portions of the building and the heritage considerations, I note that the parties have agreed that the merit contentions raised in the Council’s Statement of Facts and Contentions filed with the Court on 14 January 2021 do not warrant refusal of the application.

Notification of the DA

35. The DA was placed on notification from 4 to 25 March 2020. No submissions were received.

36. 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 accord with the terms of the agreement.

37. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2020/0036 for the demolition of all existing buildings at 6-8 Factory Street, Granville is approved subject to the conditions at Annexure “A”.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (163645, pdf)

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Decision last updated: 16 March 2021