Xu and Cui v The City of Canada Bay Council

[2022] NSWLEC 1549

Land and Environment Court

New South Wales

Medium Neutral Citation:

Xu and Cui v The City of Canada Bay Council [2022] NSWLEC 1549

Hearing dates:

Conciliation conference held 15 and 16 August 2022, final agreement filed on 7 October 2022.

Date of orders:

07 October 2022

Decision date:

07 October 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA2021/0290 and rely on the amended plans and documents listed at Annexure A.

(2) The Applicant’s written request, pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of building as set out at clause 4.3 of the CBLEP, is upheld.

(3) The Applicant’s written request, pursuant to clause 4.6 of the CBLEP, seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the CBLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA2021/0290 (as amended) for alterations and additions to the existing dwelling house, construction of a new garage and alterations to the existing boat port at the rear of the site at 25 Abbotsford Parade, Abbotsford NSW, subject to the conditions of consent contained at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – alterations and additions – cl 4.6 written request – height of building – floor space ratio – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.4

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 10, Pts 10.3, 10.6, Div 2

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.12, 2.13, 4.6

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Parramatta River Estuary Coastal Zone Management Plan

Category:

Principal judgment

Parties:

Yunxia Xu (First Applicant)
Jiaan Cui (Second Applicant)
The City of Canada Bay Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/82337

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2021/0290 (the DA) by The City of Canada Bay Council (the Respondent). The DA sought consent for alterations and additions to an existing dwelling at 25 Abbotsford Parade, Abbotsford (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 and 16 August 2022. I presided over the conciliation conference.

3. Prior to the commencement of the conciliation conference, on 19 July 2022, the Court had granted leave to the Applicant to amend the DA and rely upon amended plans and documents.

4. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced on site and was thereafter conducted by Microsoft Teams.

5. During the conciliation conference, the parties reached an agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to a further amended DA, subject to conditions.

6. Whilst the final amended DA remains largely consistent with the original DA, a series of design changes cumulatively resolve the contentions initially raised by the Respondent, which in turn related to impacts associated with the contravention of the height of building and floor space ratio (FSR) development standards, bulk and scale, inadequate front and side setbacks, visual and acoustic privacy, character and view impacts amongst other contentions.

7. Of particular note, the final amended DA has reconfigured the existing roof form to slightly reduce its extent and adjusted the proposed form of the roof terrace to minimise its scale relative to the existing dwelling's roof. The final amended DA also proposes alterations to the existing boat shed at the rear of the site to reduce its extent.

8. 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 final amended DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. In that regard, I am satisfied the DA was made with the consent of the owners of the land, by their agent Projexel Homes, as evidenced within the Class 1 Application accompanying this matter.

11. The original DA was publicly notified from 27 October 2021 to 17 November 2021. Five submissions were received by the Respondent. The amended DA, for which leave was granted on 19 July 2022, has been provided to these five submitters and subsequently a further two written submissions were received by the Respondent. At the commencement of the conciliation conference, the Court also received oral submissions from a small number of concerned residents at the site.

12. The parties agree, and I am satisfied that the final amended DA satisfactorily addresses the matters raised in written and oral submissions, which in turn dealt primarily with concerns for the scale of the proposal and for associated view impacts. The final amended DA, by virtue of the altered roof form and amended roof terrace, will result in marginally improved views for affected neighbours, relative to the existing dwelling.

13. The parties agree, and I am satisfied, that the Canada Bay Local Environmental Plan 2013 (CBLEP) is a relevant environmental planning instrument. The site is zoned as R2 Low Density Residential and the proposed development - characterised as a dwelling house - is permissible with consent. The final amended DA achieves the objectives of the R2 zone.

14. The parties agree, and I am satisfied, that all principal development standards of the CBLEP have been met by the final amended DA, with the exception of cl 4.3 - Height of buildings, which establishes a maximum height of building standard of 8.5m, and cl 4.4 - Floor space ratio, which establishes a maximum FSR of 0.5:1 for the site.

15. In such an instance, cl 4.6(3) of the CBLEP requires consideration of a written request from the Applicant demonstrating that compliance with these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

16. Clause 4.6(4) of the CBLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

17. Additionally, cl 4.6(4)(b) of the CBLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

18. As required by cl 4.6 of the CBLEP, the Applicant has provided two written requests (each prepared by Planning Ingenuity and dated 5 August 2022) seeking to vary the height of building and FSR development standards respectively.

19. The parties agree, and I am satisfied, that these written requests adequately justify the variance to the height of building and FSR development standards for the following reasons.

20. The objectives of the R2 Low Density Residential land use zone provide for the housing needs of the community within a low density residential environment. I am satisfied the final amended DA meets these objectives.

21. The objectives of cl 4.3 of the CBLEP include seeking to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality, and positively contributing to the streetscape and public spaces. Additionally, the objectives seek to protect the amenity of residential uses, neighbouring properties and public spaces in terms of visual and acoustic privacy, and solar access and view sharing. I am satisfied the final amended DA meets these objectives.

22. The objectives of cl 4.4 of the CBLEP seek to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality, provide a suitable balance between landscaping and built form, minimise overshadowing and loss of privacy to neighbouring properties, maximise solar access and amenity for public places, and manage the visual impact of development when viewed from public places including the Parramatta River. I am satisfied the final amended DA meets these objectives.

23. The final amended DA maintains an existing exceedance of the 8.5m height of the building standard. The primary ridge line of the current dwelling on the site is a maximum of 10.81m in height, exceeding the standard by 2.31m (27.1%). The proposed alterations and additions will not extend above this existing ridge line, although portions of the additions located towards the rear of the site will exceed 8.5m in height.

24. Similarly, the final amended DA exceeds the maximum FSR of 0.5:1 by approximately 28.6%, equating to an additional 93.2sqm of gross floor area and a resultant FSR of 0.64:1. Of particular relevance in this matter, the existing dwelling - at 0.57:1 - currently exceeds the FSR standard by 45.9sqm (14.1%).

25. As noted, the DA has been further amended during the conciliation conference to resolve the remaining contentions raised by the Respondent, and in particular has now been reconfigured to reduce its bulk and scale, to resolve privacy concerns and to mitigate against view impacts.

26. The form of the existing dwelling's roof is to be altered to shorten (not lower) the primary ridge line and remove the rear hipped form. Proposed additions, including the roof terrace, are situated behind the existing dwelling's primary roof (as altered) and configured to marginally improve the views available from affected neighbours' properties.

27. Additionally, the proposed gross floor area which contributes to the further exceedance of the FSR standard is situated primarily within the existing volume of the current dwelling, is consistent with the various setback controls and will contribute to an improved building expression and character.

28. I am satisfied the variations to the height of building and FSR standards bring with them no material adverse environmental impacts or overshadowing, and consequently I am satisfied the Applicant's two cl 4.6 written requests adequately justify the proposed variation to the height of building and FSR development standards.

29. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils, of the CBLEP, the site is identified as Class 5 on the Acid Sulfate Soils map. The Applicant has provided a Preliminary Acid Sulfate Soils Investigation and Assessment Report, dated 6 October 2021, which confirms that no acid sulfate soils were identified on site and that soils are suitable for the proposed development. Pursuant to cl 6.1(4)(b), the Respondent has provided the necessary written notice to the Applicant confirming its acceptance of the recommendations of the Applicant's report.

30. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks, of the CBLEP, the final amended DA proposes stormwater works, landscaping works and alterations to an existing boat shed, which enliven the ancillary earthworks consideration under cl 6.2(3). The parties' experts agree and I am satisfied these matters have been appropriately considered, and there will be no likely disruption or detrimental effect on drainage patterns and soil stability.

31. The parties agree, and I am satisfied, that pursuant to cl 6.3 - Environmentally sensitive land, of the CBLEP, the site is mapped as being environmentally sensitive. Consequently, the final amended DA has been configured in a manner that does not include the clearing of any trees, is situated on a site that is largely clear of any existing vegetation such that it does not provide habitat for native species, results in no further encroachment into environmentally sensitive areas, and will improve the quality of stormwater discharged into the adjacent waterway. I am therefore satisfied the matters set out at cl 6.3(3) have been appropriately considered.

32. The parties agree, and I am satisfied, that pursuant to cl 6.4 - Limited development on foreshore land, of the CBLEP, the site is mapped within the Foreshore Area. This clause seeks to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. I note that the proposed works to the dwelling house are not located within the mapped Foreshore Area. The proposed development within the mapped area is for the purposes of altering an existing boat shed and the refurbishment of an existing swimming pool, each of which may be carried out with consent pursuant to cl 6.4(2).

33. In satisfaction of the matters set out at cl 6.4(3), the parties agree, and I am satisfied, that the development is consistent the objectives of the R2 Low Density Residential zone for reasons already set out in this judgment. The prevailing character of the immediate vicinity comprises detached and semi-detached residential dwellings, multi-dwelling houses and residential flat buildings. The appearance of the proposed development is consistent and compatible with nearby development. As previously noted, the proposed development will result in a reduction in stormwater pollutants deposited into the adjacent waterway, mitigating the impacts of the existing residential use on marine habitat. No vegetation is proposed to be cleared, and the use of the neighbouring park and dwellings remain unaffected.

34. Additionally, no conflict with the public use of the adjacent open space and waterways will arise given the dwelling house is pre-existing and there is proposed to be a reduction in the intensity of use of the land immediately adjacent to the foreshore. The proposed development does not compromise the future use of the shoreline. The presentation of the site to the foreshore will be improved with the proposed reduction in size of the existing boat shed and refurbishment of the existing swimming pool. Any anticipated sea level rise or change of flooding patterns as a result of climate change have been considered in the Applicant's Concept Stormwater Quality Management Plan and supplementary hydraulic statements and plans.

35. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. The site is mapped within the Foreshores and Waterways Area (Part 10.3 of SEPP BC), identified as containing a Wetlands Protection Area (Part 10.6 of SEPP BC) and includes a small portion at the rear of the site zoned W2 Environmental Protection.

36. The effect of these classifications is that Chapter 10 of SEPP BC applies and the consent authority must give consideration to the matters in Division 2, Chapter 10 of SEPP BC before any grant of consent. The parties agree, and I am satisfied, that these matters have been appropriately considered, and I note the proposed works all occur outside the W2 mapped area.

37. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The site is mapped within the Coastal Environment Area and Costal Use Area, hence ss 2.12 and 2.13 of SEPP Resilience and Hazards apply. These sections provide that development consent must not be granted to development unless the consent authority is satisfied that development is not likely to cause increased risk of coastal hazards. Additionally, development consent must not be granted unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

38. Having regard to the final amended DA, the parties agree, and I am satisfied, that the proposed development will not cause an increased risk of coastal hazards given the existing sea wall will remain and no development is proposed on land affected by tidal waters. There will be a reduction in the extent of development adjacent to the foreshore with the removal of a portion of the existing boat shed and its alteration to form a 'boat port', open on three sides. Similarly, the alterations and additions to the existing primary dwelling are set back at a distance and upslope from the foreshore, the existing swimming pool is set back and upslope from the foreshore, and the quality of resultant stormwater will be improved, reducing adverse impacts on coastal processes.

39. Further, the Parramatta River Estuary Coastal Zone Management Plan (CZMP) applies. Pursuant to s 2.13 of SEPP Resilience and Hazards, consent must not be granted unless the consent authority has taken into consideration relevant provisions of the CZMP. In this regard the CZMP applies to the Parramatta River estuary, an area that partly includes the City of Canada Bay Council's local government area. The CZMP states that Hen and Chicken Bay, which adjoins the site, is a known area of potential contamination. The CZMP recommends relevant actions to '…to protect existing seawalls from further erosion.' The parties agree, and I am satisfied, that the existing sea wall is proposed to be maintained and is therefore consistent with the CZMP provisions.

40. Pursuant to s 4.6 of SEPP Resilience and Hazards, the parties agree, and I am satisfied, that no contamination or risk of contamination has been identified on the site. Further investigation is not considered necessary and accordingly, I am satisfied the final amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.

41. The parties agree, and I am satisfied, that the final amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate dated 15 August 2022 has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate.

42. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

43. The Court notes that:

1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent.

1. The amended DA was uploaded to the NSW Planning Portal on 16 August 2022.

2. The Applicant has filed the amended DA with the Court on 16 August 2022.

Orders

44. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA2021/0290 and rely on the amended plans and documents listed at Annexure A.

2. The Applicant’s written request, pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of building as set out at clause 4.3 of the CBLEP, is upheld.

3. The Applicant’s written request, pursuant to clause 4.6 of the CBLEP, seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the CBLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA2021/0290 (as amended) for alterations and additions to the existing dwelling house, construction of a new garage and alterations to the existing boat port at the rear of the site at 25 Abbotsford Parade, Abbotsford NSW, subject to the conditions of consent contained at Annexure B.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (91033, pdf)

Annexure B (358863, pdf)

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Decision last updated: 10 October 2022