Woo v Strathfield Municipal Council

[2024] NSWLEC 1653

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woo v Strathfield Municipal Council [2024] NSWLEC 1653

Hearing dates:

Conciliation conference on 24 and 25 September 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 2023/20 for demolition of existing structures and construction of a new two-storey dwelling with basement level and ancillary development (pond) at 12 South Street, Strathfield, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – dwelling house – 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, Sch 7, ss 23, 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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, 4.3, 4.4C, 6.1, 6.2, 6.4

Category:

Principal judgment

Parties:

Willis Woo (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Mallos (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/86100

Publication restriction:

Nil

JUDGMENT

Introduction

1. This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal of Development Application No 2023/20 for demolition of existing structures and the construction of a new two-storey dwelling with basement level and ancillary development (pond) at 12 South Street, Strathfield (Lot 81 DP 8778) (the site) by Strathfield Municipal Council.

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 commenced on 24 September 2024 and concluded on 25 September 2024. I presided over the conciliation conference.

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 EP&A 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 and 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 EP&A 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 (EP&A Reg). The plans and documents comprising the amended application were submitted to the Court on 25 September 2024 and are listed under Condition 1 of the conditions of consent at Annexure A.

6. Amendments made to the proposal through the conciliation process included:

• Reduction in the length of the proposed pond by 900mm to the west;

• Reduction in the length of the proposed pond by 2100mm to the east;

• Provision of a 600mm landscape strip along northern boundary between the fence and the proposed pond;

• Introduction of two additional canopy trees on site including one in the front and one in the rear;

• Introduction of privacy treatments to the ground floor north facing windows and sliding door;

• Increase in the setback of the proposed skillion roof form in the north western corner of the proposed building to align with the setback of the southern skillion roof and an associated reduction in the size of the upper level rumpus room;

• Amendment to the proposed basement to confine it to below the building footprint only;

• Provision of a soft landscape treatment immediately in front of the building to the south of the building entry; and

• Increase in the width of the western most window element in the southern elevation to 1200mm.

Jurisdictional matters

7. 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 EP&A Reg owner’s consent is not required.

2. The Respondent notified the original development application between 22 March and 14 April 2023. Two submissions were received from the adjoining owner at 10 South Street. No oral submissions were heard at the commencement of the conciliation conference. In reaching agreement, the parties have considered the concerns raised on behalf of the adjoining owner at 10 South Street.

Strathfield Local Environmental Plan 2012

3. The development works are for the purposes of a residential dwelling house and ancillary development, which is a permissible use in the R2 – Low Density Residential zone in which the site is located, pursuant to Strathfield Local Environmental Plan 2012 (SLEP).

4. 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’.

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

6. The proposed development complies with the maximum height of building development standard set out in cl 4.3 of SLEP having a height less than the maximum permissible of 9.5m (maximum height of 9.160m proposed).

7. 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 0.5:1 (FSR of 0.49:1 proposed).

8. 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.

9. Consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2(3) of SLEP.

10. 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.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. 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. 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.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. 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 Tree Management Services dated 22 May 2023) 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.

State Environmental Planning Policy (Sustainable Buildings) 2022

13. The proposal is BASIX affected development in accordance with Sch 7 of the EP&A Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply.

14. An updated BASIX certificate (Cert No. 1365014S_04 dated 25 September 2024) prepared by Integreco Consulting Pty Ltd as required by s 27 of the EP&A Reg has been provided and is referenced in the conditions of consent at Annexure A.

Conclusion

8. 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)).

9. 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

10. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 2023/20 for demolition of existing structures and construction of a new two-storey dwelling with basement level and ancillary development (pond) at 12 South Street, Strathfield is determined by the grant of consent subject to the conditions contained in Annexure A.

Helena Miller

Acting Commissioner of the Court

Annexure A

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Decision last updated: 16 October 2024