Yan v Strathfield Municipal Council

[2025] NSWLEC 1214

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yan v Strathfield Municipal Council [2025] NSWLEC 1214

Hearing dates:

Conciliation conference on 18-19 March 2025

Date of orders:

08 April 2025

Decision date:

08 April 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. 2024.10 for the alterations and additions to an existing dwelling including a new first floor addition and basement level on Lot 30 in Deposited Plan 4508 being 76 Churchill Avenue, Strathfield is determined by the grant of consent subject to the conditions set out in Annexure ‘B’ to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to item of heritage significance – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 6.2, ss 2.6, 6.6, 6.7, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Strathfield Local Environmental Plan 2012, cll 4.3, 4.4, 4.4C, 5.10, 5.21, 6.1, 6.2, Sch 5

Texts Cited:

Strathfield Consolidated Development Control Plan 2005

Strathfield Community Participation Plan 2019

Category:

Principal judgment

Parties:

Amy Yan (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
J Farrell (Solicitor) (Applicant)
M Melos (Solicitor) (Respondent)

Solicitors:
McKees Legal (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/347533

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Alterations and additions are proposed to an existing dwelling known as ‘Normanhurst’ at 76 Churchill Avenue, Strathfield. In broad terms, the proposal involves the partial demolition of the existing dwelling on the site to permit the construction of a basement and a two-storey addition to the rear of the site, landscaping and other works.

2. To this end, development application DA2024.10 was lodged with Strathfield Municipal Council (the Council) by the Applicant, Ms Amy Tan, on 8 February 2024.

3. The development application was advertised for a period of 14 days in accordance with the Strathfield Community Participation Plan 2019, in response to which 4 public submissions were received.

4. The development application was refused by the Council on 26 July 2024, and the Applicant filed an appeal in Class 1 of the Court’s jurisdiction on 19 September 2024, in accordance with s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The appeal was listed for mandatory conciliation on 18 March 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. After an onsite view, the conciliation conference convened at Court, during which the parties reached in-principle agreement on those issues in dispute.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 19 March 2025, and amended plans and other documents were filed on the same date.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [28].

10. The site is located in an area identified by the Strathfield Local Environmental Plan 2012 (SLEP) as R2 Low Density Residential zone, in which dwelling house development is permitted with consent, where consistent with the following objectives:

•  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 development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

11. The proposal complies with the height of building standard and floor space ratio standards at cll 4.3, 4.4 and 4.4C of the SLEP respectively.

12. While the site is not identified as an item of heritage significance, it is located within the Churchill Avenue, Strathfield Conservation Area - Federation Houses Group (Churchill Avenue HCA), listed in Sch 5 of the SLEP. The Statement of Significance for the HCA is as follows:

“Churchill Avenue, between Elva Street and Homebush Road is an exemplar Federation streetscape. Developed in a short period of time, most of the original early twentieth century houses survive. Due to building covenants placed on the original land sales, the housing is of high quality and has consistent use of materials, scale and form, reflecting the aspirations of the community at the time. The range of house sizes gradually increases from the east to the west end, providing a smooth transition in the pattern of the streetscape. The housing is complemented by street plantings and mature gardens, consistent with the garden suburb philosophy of the period. The development of Churchill Avenue is part of the early twentieth century subdivision of Strathfield to accommodate middle class people. The proximity to Strathfield Railway Station is also reflected in the range of housing, with smaller allotments and houses located closer to the station. A number of houses on Churchill Avenue are associated with important local people. Mozart House at 57 Churchill Avenue was the home of Hugo Alpen, the Superintendent of Music in the Department of Public Instruction from 1907 until his death in 1917. James McGirr, Premier and Colonial Treasurer of N.S.W. from 1947 to 1952, lived at 59 Churchill Avenue from 1941 until his death in 1957. The work of prominent Strathfield builder John Lyon Gardiner is seen in a number of houses including nos. 55. 57, 61, 84, and 86. Another local builder, David Cunningham is also represented at no. 78. Robert Joshua King, who with Mary Ann Balmain created the 1903 subdivision, lived at 65-67 Churchill Avenue from 1907 and the property remained in his family until at least the 1970s.”

13. The development application is supported by a Statement of Heritage Impact prepared by Diana’s Planning and Heritage dated January 2023

14. On the basis of the final selection of materials and finishes, and the amendments agreed between the heritage experts, I accept that the effect of the proposed development on the Churchill Avenue HCA is satisfactory, in accordance with cl 5.10 of the SLEP.

15. The site is flood affected and so the provisions of cl 5.21 of the SLEP apply to require those matters at subl (3) to be considered. I am assisted by the Overland Flood Impact Assessment Report prepared by SDS Engineering dated 19 May 2023, and the Addendum to the Overland Flood Impact Assessment Report dated 19 March 2025 by the same author (Amended Flood Report) as to the flood behaviour, flood hazard and flood planning level relevant to the site. I also note the Council’s assessment report records its satisfaction in respect of flood behaviour as a result of climate change, and the scenarios modelled in the Amended Flood Report. On the basis of the above, I am satisfied that the development is compatible with, and will not adversely affect, the flood behaviour of the land or of adjoining properties, and will not adversely affect the safe occupation of the site or affect the environment in terms set out at cl 5.21(2) of the SLEP.

16. The site is located on land mapped as ‘class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the SLEP. While a substantial volume of excavation is proposed, the elevation of the land expressed in terms of the Australian Height Datum (AHD) is such that the excavation will not be to a level that is below 5m AHD and, having regard to the results of one augered boreholes and four dynamic cone penetrometer test recorded in the Geotechnical Investigation prepared by White Geotechnical Group dated 17 January 2024 (Geotechnical Assessment), I am also satisfied that the watertable will not be lowered by the proposed development.

17. On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the SLEP and conclude that the earthworks proposed will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:

1. Geotechnical Assessment.

2. Stormwater Services Plan prepared by Hyve Designs dated 17 March 2025 (Stormwater Plans)

3. Agreed conditions of consent providing for dilapidation investigation of adjoining properties.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 18 October 2024 assesses the impact of the proposal on 19 trees. Three street trees are proposed to be retained, as are 5 trees on the subject site. Six trees on the site are proposed to be removed. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

19. A tree on the adjoining site at 74 Churchill Avenue is also proposed to be removed.

20. The arboricultural experts retained in this matter, Mr Ross Jackson for the Applicant and Mr Glenn Murray on behalf of the Council, agree that the encroachment of the driveway on the tree requires its removal. Furthermore, the experts agree that replacement tree planting is acceptable. Finally, the parties provide evidence of written consent from the owner of 74 Churchill Avenue agreeing to its removal on the basis of certain provisos that are addressed by proposed conditions of consent.

21. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Part 6.2 of the Biodiversity SEPP applies.

22. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

23. The Stormwater Plans depict the storage of stormwater in a rainwater tank, fitted with first flush devices and^, connected to Council’s drainage system in a manner that is to conform to water conservation and stormwater quality targets set out under Sections 3.1 and 3.2 respectively under Part N of the Strathfield Consolidated Development Control Plan 2005. I am satisfied that the on site detention of stormwater will result in a neutral or beneficial effect on water quality in the catchment, and will manage the flow of water into that catchment.

24. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

25. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Statement of Heritage Impact provides a detailed historical chronology of the use and occupation of the site, supported by images of the area in 1939, and aerial photographs from 1943. There is no use or activity that would suggest the site is contaminated or requires remediation. As such, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

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

27. The application is accompanied by a BASIX certificate (Cert No. AAL-13583_06, prepared by Chapman Environmental Services Pty Ltd dated 14 March 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

28. An embodied energy report is appended to the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

29. 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.

30. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

1. The Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No. No. 2024.10 to rely on the documents set out in Annexure A.

2. The Applicant filed the plans and documents listed in Annexure A on 19 March 2025.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 2024.10 for the alterations and additions to an existing dwelling including a new first floor addition and basement level on Lot 30 in Deposited Plan 4508 being 76 Churchill Avenue, Strathfield is determined by the grant of consent subject to the conditions set out in Annexure ‘B’ to this agreement.

T Horton

Commissioner of the Court

Annexure A (145804, pdf)

Annexure B (448468, pdf)

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Decision last updated: 08 April 2025