Zabaleta v Northern Beaches Council

Case •

[2024] NSWLEC 1278

•

28 May 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Zabaleta v Northern Beaches Council [2024] NSWLEC 1278
Hearing dates: Conciliation Conference on 23 April 2024
Date of orders: 28 May 2024
Decision date: 28 May 2024
Jurisdiction:Class 1
Before: Byrne AC
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No DA2022/1650 for alterations and additions to a dwelling house including swimming pool at 8 Baroona Road, Church Point NSW 2105, known as Lot A in DP 391997, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to dwelling house – steep land – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Pittwater Local Environmental Plan 2014, cll 2.3, 7.7

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

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Texts Cited:

Pittwater 21 Development Control Plan

Category:Principal judgment
Parties: Jose Maria Eduardo Zabaleta (First Applicant)
Alison Partin (Second Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
C Morton (Solicitor) (Applicants)
R O’Gorman-Hughes (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicants)
Northern Beaches Council (Respondent)
File Number(s): 2023/315498
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2022/1650 (the Development Application) for alterations and additions including swimming pool (the Proposed Development) at 8 Baroona Road, Church Point NSW 2105, known as Lot A in DP 391997 (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 site and at Court. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicants’ plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant consent to the Proposed Development on the land subject to conditions.

  4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

  5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

  6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters that apply.

State Environmental Planning Instruments

  1. I have considered the jurisdictional issues raised by the following State Environmental Planning Instruments which apply to the Site as set out in the Statement at pars (26) to (34) and am satisfied that no jurisdictional impediments arise preventing the Court from allowing the appeal and granting consent to the Development Application:

  1. State Environmental Planning Policy (Resilience and Hazards) 2021

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

  3. State Environmental Planning Policy (Transport and Infrastructure) 2021

Pittwater Local Environmental Plan 2014 (PLEP)

  1. The Site is zoned C4 Environmental Living pursuant to the PLEP. The Proposed Development is permissible with consent within this zone.

  2. The parties’ Statement sets out each of the relevant objectives of the C4 zone. I have considered and accept the parties’ analysis and agreement that the proposal in the Amended Plans before the Court is consistent with the objectives of the C4 zone pursuant to cl 2.3(2) of the PLEP.

  3. I am satisfied that as set out in the Statement the Proposed Development does not give rise to any other non compliances of relevant clauses of the PLEP such as to give rise to a jurisdictional error preventing the making of an order for the grant of development consent.

  4. I note in particular that the Site is steep land, and a portion of the Site is identified as Pittwater Geotechnical Hazard H1 pursuant to cl 7.7 of the PLEP.

  5. The parties agree in the Statement and I accept that the Development Application, as amended, has been designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development (see Amended Geotechnical Assessment). The parties also agree that the Development Application, as amended, will appropriately manage waste water, stormwater and drainage across the Site so as not to affect rate, volume and quality of water leaving the land (see drawing no. DA.21 Roof & Stormwater Concept Plan and drawing no. DA.22 of the Amended Plans).

Public Participation

  1. The Development Application went through an extensive notification process in October 2022 and February 2023. Fifteen submissions were received and considered by the parties. The appeal was commenced on 5 October 2023 from the Council’s actual refusal of the Development Application.

  2. On 27 October 2023, the Court granted the Applicants leave to rely on amended plans and documents listed in its Notice of Motion filed 20 October 2023.

  3. The Earlier Amended Architectural Plans were informally notified between 6 March 2024 and 13 March 2024. Seven submissions were received and have been considered by the parties, raising the following concerns:

  1. Inconsistency between plans;

  2. Incompatibility with the streetscape and character;

  3. Insufficient landscape area in front setback;

  4. Water runoff;

  5. Traffic and car parking impacts;

  6. Traffic management during construction;

  7. Waste management;

  8. Biodiversity impacts;

  9. Use of dwelling house;

  10. Potential for damage to road during construction;

  11. Potential geotechnical impacts during excavation; and

  12. Proposed front building line.

  1. The parties agree that the further amendments made to the Earlier Amended Architectural Plans, reflected in the Amended Plans, reduce environmental impacts of the Development Application and therefore did not require renotification.

  2. On 20 April 2024, the Applicants provided the Respondent with the Amended Plans. The parties advise that the amendments made to the Development Application were made in response to concerns of the Respondent and objectors and in the opinion of the parties’ experts, will result in a development on the Site that is consistent with the desired future character of the locality, achieves relevant objectives of the Zone C4 Environmental Living under the PLEP, and is consistent with the relevant controls of the Pittwater 21 Development Control Plan.

  3. Consistent with the public interest, I am satisfied that the resident objectors have been accorded procedural fairness and their reasonable concerns considered by the parties in reaching the s 34 agreement.

Conclusion

  1. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

  2. 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. 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.

Notations

  1. The Court notes that:

  1. Northern Beaches Council, has agreed pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicants amending Development Application No DA2022/1650 in accordance with the following documents:

  1. Amended plans prepared by JJ Drafting Australia Pty Ltd, revision I, dated 20 April 2024 (Amended Plans):

Plan No.

Rev.

Title

Drawn by

Date

DA.01

I

Cover Page

JJ Drafting Australia Pty Ltd

20/04/2024

DA.02

I

Site Analysis Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.03

I

3D Projection – Viewsharing

JJ Drafting Australia Pty Ltd

20/04/2024

DA.04

I

Photomontage – Viewsharing

JJ Drafting Australia Pty Ltd

20/04/2024

DA.05

I

Garage Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.06

I

Pool Terrace Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.07

I

Ground Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.08

I

First Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.09

I

Second Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.10

I

Elevation Sheet 1

JJ Drafting Australia Pty Ltd

20/04/2024

DA.11

I

Elevations Sheet 2

JJ Drafting Australia Pty Ltd

20/04/2024

DA.12

I

Elevations Sheet 3

JJ Drafting Australia Pty Ltd

20/04/2024

DA.13

I

Elevations Sheet 4

JJ Drafting Australia Pty Ltd

20/04/2024

DA.14

I

Elevations Sheet 5

JJ Drafting Australia Pty Ltd

20/04/2024

DA.15

I

Driveway Profile & Section A

JJ Drafting Australia Pty Ltd

20/04/2024

DA.16

I

Dwelling Section C

JJ Drafting Australia Pty Ltd

20/04/2024

DA.17

I

Dwelling Section B & D

JJ Drafting Australia Pty Ltd

20/04/2024

DA.18

I

Pool Profile

JJ Drafting Australia Pty Ltd

20/04/2024

DA.19

I

Driveway Turning Circle

JJ Drafting Australia Pty Ltd

20/04/2024

DA.20

I

Front Building Line Compliance

JJ Drafting Australia Pty Ltd

20/04/2024

DA.21

I

Roof & Stormwater Concept Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.22

I

Erosion & Sediment Control/Waste Management Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.23

I

Existing Landscaped Area Calculation Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.24

I

New Landscaped Area Calculation Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.25

I

BASIX & Specifications

JJ Drafting Australia Pty Ltd

20/04/2024

DA.26

I

Shadow Diagram June 21 9:00 am

JJ Drafting Australia Pty Ltd

20/04/2024

DA.27

I

Shadow Diagram June 21 12 noon

JJ Drafting Australia Pty Ltd

20/04/2024

DA.28

I

Shadow Diagram June 21 3:00 pm

JJ Drafting Australia Pty Ltd

20/04/2024

DA.29

I

Existing Ground Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.30

I

Existing First Floor Plan

JJ Drafting Australia Pty Ltd

20/04/2024

DA.31

I

Existing Elevations Sheet 1

JJ Drafting Australia Pty Ltd

20/04/2024

DA.32

I

Existing Elevation Sheet 3

JJ Drafting Australia Pty Ltd

20/04/2024

DA.33

I

Existing Elevation Sheet 4

JJ Drafting Australia Pty Ltd

20/04/2024

1 of 1

I

Openings Schedule

JJ Drafting Australia Pty Ltd

20/04/2024

1 of 1

I

Schedule of Colours & Materials

JJ Drafting Australia Pty Ltd

20/04/2024

1 of 3

I

Landscape Plan

JJ Drafting Australia Pty Ltd

20/04/2024

2 of 3

I

Landscape Plan

JJ Drafting Australia Pty Ltd

20/04/2024

3 of 3

I

Landscape Plan

JJ Drafting Australia Pty Ltd

20/04/2024

  1. Amended Geotechnical Assessment, version 4, prepared by AscentGeo Geotechnical Consulting dated 22 April 2024 (Amended Geotechnical Assessment);

  2. Amended Aboricultural Impact Appraisal and Method Statement, revision C, prepared by Ezigrow Arboricultural Consulting dated 21 April 2024;

  3. BASIX Certificate No. A1744509 prepared by JJ Drafting Australia Pty Ltd issued 22 April 2024; and

  4. Waste Management Plan prepared by JJ Drafting Australia Pty Ltd dated 22 April 2024.

Orders

  1. The Court orders:

  1. The appeal is upheld.

  2. Development consent is granted to development application No DA2022/1650 for alterations and additions to a dwelling house including swimming pool at 8 Baroona Road, Church Point NSW 2105, known as Lot A in DP 391997, subject to the conditions of consent in Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 28 May 2024

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