ZT Architects Pty Ltd v Campbelltown City Council

[2024] NSWLEC 1768

Land and Environment Court

New South Wales

Medium Neutral Citation:

ZT Architects Pty Ltd v Campbelltown City Council [2024] NSWLEC 1768

Hearing dates:

Conciliation conference 21-22 November 2024

Date of orders:

10 December 2024

Decision date:

10 December 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application 2961/2023/DA-RS, as amended, for the staged development at 11 Maroubra Crescent Woodbine NSW involving Torrens Title subdivision of the land, the carrying out of an attached dual occupancy on the newly constructed battleaxe lot and the Torrens Title subdivision of the dual occupancy is determined by the grant of consent, subject to the conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: dual occupancy development in R2 zone – essential services – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8,7

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

Campbelltown Local Environmental Plan 2015, cll 4.1, 4.1B, 4.3A, 7.1, 7.4, 7.10

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 4, 6, ss 4.10, 6.6, 6.7

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.120

Texts Cited:

Planning for Bushfire Protection (2019).

Category:

Principal judgment

Parties:

ZT Architects Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
S Schneider (Solicitor) (Applicant)
A Hannam (Respondent)

Solicitors:
Houston Dearn O’Connor (Applicant)
Shaw Reynolds (Respondent)

File Number(s):

2024/236790

Publication restriction:

Nil

Judgment

1. COMMISSIONER: An attached dual occupancy development is proposed behind an existing dwelling at 11 Maroubra Crescent, Woodbine in Sydney’s southwest.

2. The proposal is for staged development, comprising the following:

1. Stage 1: Demolition of structures on the site, removal of trees, new driveway, a creation of a right of way and a two lot Torrens title subdivision.

2. Stage 2: construction of an attached, 2 storey dual occupancy comprising 2 x 5 bedroom dwellings each with single garage, landscaping, stormwater and driveways.

3. Stage 3: Torrens title subdivision of the dual occupancy with reciprocal rights of way.

3. Development Application No. 2961/2023/DA-RS seeking development consent for development as described above was lodged by the Applicant in these proceedings, ZT Architects Pty Ltd, with Campbelltown City Council (the Council) on 5 September 2023.

4. The Council refused the DA on 27 March 2024, and ZT Architects filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 27 June 2024.

5. The appeal was listed for mandatory conciliation on 21 November 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference.

6. At the conciliation conference, parties reached an in-principle agreement as to the terms of an agreement, subject to an adjournment of one day to prepare amended plans and other documents. I granted an adjournment for that purpose.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 22 November 2024.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by ZT Architects, 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, and after consideration of those jurisdictional preconditions to the grant of consent.

10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

11. The site is located in the R2 Low Density Residential zone, according to the Campbelltown Local Environmental Plan 2015 (CLEP), in which dual occupancy development is permitted with consent where consistent with objectives that read as follows:

•  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 enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

•  To minimise overshadowing and ensure a desired level of solar access to all properties.

•  To facilitate diverse and sustainable means of access and movement.

12. As the proposal is for subdivision of land, the relevant at cl 4.1 of the CLEP sets a minimum lot size of 500m². The Stage 1 Torrens title subdivision is for lots that are greater in area than the minimum lot size at cl 4.1. Further, as the proposed Stage 3 Torrens title subdivision is for the purposes of dual occupancy development, cl 4.1B of the CLEP provides that, despite cll 4.1 and 4.1B(2), consent may be granted for such subdivision in the R2 zone where the development application seeks concurrent approval of the dual occupancy development and subdivision into two lots, where a lot greater than 300m² will results, and where only one principal dwelling is proposed on each lot.

13. The proposed dual occupancy is two storeys in height, consistent with the height restrictions for residential accommodation at cl 4.3A of the CLEP.

14. On the basis of the Cut and Fill plan (drawing DA-104) prepared by ZT Architects, and the amended stormwater plans prepared by SSCE, I consider the earthworks proposed to give effect to the development will not have a detrimental impact on environmental functions or processes, neighbouring uses or on cultural or other features of the land, in accordance with cl 7.1 of the CLEP.

15. The site is not identified on the geospatial mapping tool known as ‘ESpade’ as land affected by salinity to which cl 7.4 of the CLEP is directed. As such, the provision does not apply to the site.

16. Development consent is precluded by the terms of cl 7.10 of the Campbelltown Local Environmental Plan 2015 (CLEP) unless the consent authority is satisfied that certain services considered essential are available or that adequate arrangements have been made to make them available when required.

17. Written consent has been obtained from the owners of adjoining properties at 9A and 9B Maroubra Crescent, being land on which there is an existing easement permitting connection to the local stormwater drainage network.

18. Amended stormwater plans, prepared by SSEE are supported by MUSIC modelling which demonstrates that post development flows are reduced from pre development flows. Furthermore, the stormwater plans depict water quality treatment devices.

19. Relevantly, the site is located within the Georges River Catchment and s 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (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.

20. As I am satisfied the amended stormwater plans demonstrate sufficient sediment control and filtration of water in the post-development scenario results in a neutral or beneficial effect on the water quality, and the retention of water in rainwater tanks minimises the impact on water flow into the catchment, I am also satisfied as to those matters at s 6.6 of the Biodiversity SEPP.

21. I note here that I have also considered those matters at s 6.7 of the Biodiversity SEPP, and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

22. For the reasons set out at [17]-[21], I am also satisfied that adequate arrangements have been made for essential services identified in cl 7.10 of the CLEP to be available when required. In particular, I note the written consent of the owners of Lot 2 and Lot 3 in DP 1116463, being the lots burdened by an existing easement required to make a connection to the local stormwater drainage network. I also consider the calculations agreed between the stormwater experts adequately demonstrate that outward flows from the development will not exceed the capacity of the local network located by survey in the existing easement.

State Environmental Planning Policy (Transport and Infrastructure) 2021

23. The site is adjacent to the Hume Highway, otherwise known as the M31. Section 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) precludes the grant of consent to development adjacent to such a roadway unless the consent authority, or Court on appeal, is satisfied that appropriate measures will be taken to ensure that certain noise levels are not exceeded.

24. A Road Traffic Noise Assessment prepared by Environmental Monitoring Services dated 24 August 2023 (EMS Report) provides recommendations for construction, on the basis of which compliance is said to be capable of being achieved with the noise levels at s 2.120(3) of the Transport SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. Chapter 2 of the Biodiversity SEPP applies to the site. The development application is accompanied by an Arboricultural Impact Assessment prepared by ArborLogix dated 22 August 2023 that identifies 4 trees on the site for removal. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

26. I note that none of the trees proposed for removal are identified as food tree species for koalas, and that the Council is satisfied the site is not core koala habitat, pursuant to s 4.10 of the Biodiversity SEPP.

Rural Fires Act 1997

27. The Rural Fire Service has issued a Bushfire Safety Authority dated 7 November 2023 (BSA), with general terms of approval, in accordance with s 100B of the Rural Fires Act 1997.

28. The BSA is issued in response to a Bushfire Assessment undertaken by Mr Matthew Noone of Bushfire Planning and Design dated 6 June 2023, and prepared in accordance with Planning for Bushfire Protection (2019).

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

29. The application is accompanied by two BASIX certificates (Cert No. 1391546S and 1391546S_02) prepared by Credwell Energy Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022.

Conclusion

30. 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.

31. 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.

32. The Court notes that:

1. Campbelltown City Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application No. 2961/2023/DA-RS (also known as PAN 364395) to rely on the amended plans and documents referred to in Annexure A.

2. The Applicant has filed the amended plans and documents in Annexure A with the Court on 22 November 2024.

Orders

33. The Court orders that:

1. The appeal is upheld.

2. Development Application 2961/2023/DA-RS, as amended, for the staged development at 11 Maroubra Crescent Woodbine NSW involving Torrens Title subdivision of the land, the carrying out of an attached dual occupancy on the newly constructed battleaxe lot and the Torrens Title subdivision of the dual occupancy is determined by the grant of consent, subject to the conditions of consent in Annexure B.

……………………

T Horton

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 10 December 2024