Zta Group Pty Ltd v Canterbury-Bankstown Council

[2019] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:	ZTA Group Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1248
Hearing dates:	29 – 30 April 2019
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Amended Development Application 177/2018 for demolition of existing structures, construction of attached dual occupancy dwellings, and Torrens title subdivision of one lot into two lots with a dwelling on each lot, on Lot 1 DP 29650, also known as 1A Tewinga Road, Birrong is approved, subject to the conditions in Annexure A. (3) The exhibits, except Exhibits 1, 3, 5, A, E and F are returned.
Catchwords:	DEVELOPMENT APPLICATION – Torrens title subdivision – attached dual occupancy dwellings – minimum lot size - front building line width – cl 4.6 variation request –amenity – solar access building orientation
Legislation Cited:	Bankstown Local Environment Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Bankstown Development Control Plan 2015
Category:	Principal judgment
Parties:	ZTA Group Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: S Shneider, Houston Dearn O’Connor (Applicant) D Loether, Bartier Perry Lawyers (Respondent)
File Number(s):	2018/300757
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 177/2018 by Canterbury-Bankstown Council (the Council) for demolition of existing structures, and construction of attached dual occupancy dwellings, thereafter Torrens title subdivision of one lot into two lots with a dwelling on each lot, on Lot 1 DP 29650, also known as 1A Tewinga Road, Birrong (the site).

The Site

2. The site is an irregular shape, on a corner allotment with (curved) frontage to Tewinga Road, of which 4.26m is primary, north facing, and 31.8m is secondary, east facing. The site has a total area of 555.1m².

3. The character of the surrounding area is single and two storey residential brick dwellings increasingly replacing older housing stock.

4. Immediately to the north of the site is a sparsely vegetated road reserve, and thereafter a rail line for both passenger and freight services.

5. The site is currently occupied by a single level weatherboard dwelling house, with a garage, both structures oriented towards the north.

Background

6. DA 177/2018 was submitted to Council on 8 March 2018, and following notification, no written submissions were received.

7. The DA was refused by Council on 3 April 2018, and the applicant appealed against the refusal of DA 177/2018, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). As a result, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 29 April 2019. There were no objectors heard at the conciliation.

8. As the parties were unable to reach an agreement, pursuant to s 34AA(2)(b) of the Court Act, the conciliation was terminated and the hearing of the appeal was held forthwith, before myself as presiding Commissioner of the conciliation. The parties agreed to rely on observations made onsite and expert evidence from the conciliation.

9. Prior to the conciliation and hearing, the DA was the subject of numerous discussions between the experts of the applicant and respondent, which resulted in amendments to the DA plans and information.

10. The Court grants leave to rely on the following tendered documents:

• amended architectural plans by ZTA Group, dated 29 April 2019, entered as Exhibit E;

• amended BASIX certificate 1011637M-02, dated 29 April 2019 as Exhibit D,

• amended subdivision plan version E, dated 30 May 2019, and

• amended cl 4.6 written request to vary minimum lot size by Cohesive Planning, dated 29 April 2019 as Exhibit F.

Issues in contention

11. The basis of the contentions relies on the attached dual occupancy dwellings being constructed prior to subdivision, as described in the draft conditions of consent. The Council’s contentions that remain regarding the proposed development are:

• the front building line width for a dual occupancy development of 12.1m is insufficient, and the cl 4.6 written request for variation of the development standard is not well founded because there are insufficient environmental planning grounds;

• there is insufficient information to assess solar access impact to the (southerly) adjoining dwelling; and

• the site is not suitable for the proposed development, therefore the proposed development is not in the public interest.

12. The experts agree that the amended plans and draft conditions of consent before the Court resolve the following contentions as set out in the Statement of Facts and Contentions (SoFC), dated 26 October 2018 (Exhibit 1), as well as a later issue that arose from a (previous) plan amendment:

• floor space ratio;

• private open space;

• (wall) height;

• design;

• internal solar access;

• privacy; and

• parking.

13. Before judgment was reserved, the Court made directions for the parties to review and refile draft conditions based on the agreement of the experts made during the hearing to further resolve contentions. The respondent filed amended conditions on 6 May 2019, which replaces Exhibit 5.

Relevant Planning Controls and Requirements

14. The requirements of s 4.15(1) of the EPA Act, particularly (a)(i) ‘any environmental planning instrument’ are relevant for the Court’s consideration to grant consent for this DA.

15. The site is zoned R2 Low Density Residential, pursuant to the Bankstown Local Environmental Plan 2015 (BLEP). The proposed development is permissible with consent. The objectives of the zone as established in the Land Use Table referred to in cl 2.3 relevantly state:

Objectives of zone

• 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 allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area.

• To allow for the development of low density housing that has regard to local amenity.

• To require landscape as a key characteristic in the low density residential environment.

16. Clause 4.1A of the BLEP describes the development standard that relates to minimum lot size for a dual occupancy development, which is relevant for consideration in this appeal. The minimum front building line width requirement for an attached dual occupancy development in this zone is established in cl 4.1A(2)(a) as 15m, and is in contention in the appeal of this DA.

4.1A Minimum lot sizes and special provisions for dual occupancies

(1) The objectives of this clause are as follows:

(a) to ensure that lot sizes are sufficient to accommodate development that is consistent with the objectives and planning provisions for dual occupancies,

(b) to minimise any likely adverse impact of development on the amenity of the area.

(2) Development consent must not be granted to development for the following purposes:

(a) a dual occupancy (attached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 500 square metres and is at least 15 metres wide at the front building line,

(b) a dual occupancy (detached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 700 square metres and is at least 20 metres wide at the front building line,

(c) a dual occupancy on a lot being land identified as “Area 2” on the Special Provisions Map.

(3) Despite subclause (2), development consent must not be granted to development for the purpose of a dual occupancy unless the consent authority is satisfied that each dwelling will have a frontage to a road.

(4) The consent authority may grant development consent for the subdivision of:

(a) a dual occupancy (attached), if the size of each lot to be created will be at least 250 square metres, or

(b) a dual occupancy (detached), if the size of each lot to be created will be at least 350 square metres.

17. Variation of a development standard may be considered by the Court, pursuant to cl 4.6 of the BLEP, where a development does not comply with a standard, as relevant in the appeal of this DA for cl 4.1A(2)(a).

18. The relevant sections of the Bankstown Development Control Plan 2015 (BDCP) for consideration are: private open space (Part B1, Cl 4.14); and design for dual occupancy (Part B1, cl 4.24).

Evidence and findings

19. The Court heard from the following planning experts: Mr Glenn Apps for the applicant; and Ms Cassandra Gibbons for the respondent.

20. The experts agree that the primary issue that requires consideration of the Court under this appeal relates to the non-compliance with the minimum lot size requirement for dual occupancy development, namely the front building line width. This contention also relates to the contentions of site suitability and public interest.

Does the request for (cl 4.6) variation of the minimum lot size for (attached) dual occupancy development satisfy the jurisdictional requirements to grant consent?

21. The planning experts agree that the site of the proposed development does not comply with the minimum lot size (MLS) development standard for (attached) dual occupancy development on this site (in this R2 zone), pursuant to cl 4.1A(2)(a) of the BLEP.

22. Clause 4.1A(2)(a) of the BLEP establishes a minimum width at the front building line of 15 m for the purpose of attached dual occupancy. The experts agree the ‘front building line’ on the site is along the site’s eastern boundary, which has a width of 12.1 m, equivalent to a shortfall of 2.9 m (19% departure) from the standard.

23. The experts disagree as to whether the development standard should be varied for the proposed development based on their assessment of compliance with the jurisdictional requirements of cl 4.6 of the BLEP.

24. Compliance with the requirements of cl 4.6 of the BLEP seeking variation in the breach of a development standard is a principal jurisdictional prerequisite that the Court must be satisfied in granting approval to the proposed development under this Class 1 appeal.

25. The DA relies on a cl 4.6 written request seeking a variation of (exception to) the development standard for the front building line width of an attached dual occupancy development, which the Court must consider pursuant to the requirements as set out in cl 4.6 of the BLEP below:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

26. When assessing a request for variation of a development standard, there are a number of steps often referred to as the ‘Wehbe tests’ that must be considered, which are helpfully explained by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. A cl 4.6 written request seeking a variation in a development standard must establish reasonableness/necessity for the variation by considering the following:

1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved,

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary,

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable,

4. the development standard has been virtually abandoned or destroyed by the Council’s own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable, or

5. compliance with the development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the site/land. That is, the site should not have been included in the zone.

27. A recent decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) clarifies the correct approach to assessing the requirement for variation of a development standard. Preston CJ explored in detail the ‘preconditions’ that must be satisfied, as established in cl 4.6 of the BLEP, to provide the consent authority (in this appeal, the Court) power to grant development consent.

28. The first precondition, as established in cl 4.6(4)(a) of the BLEP, requires the Court to form two positive opinions of satisfaction that is: initially, as set out in cl 4.6(4)(a)(i), the cl 4.6 written request has adequately addressed the requirements relating to unreasonableness/lack of necessity for compliance to the standard (cl 4.6(3)(a)), and that there are sufficient environmental planning grounds (cl 4.6(3)(b)) to justify a departure from the standard; and finally, that variation is in the public interest because it is consistent with the relevant zone and development standard objectives (cl 4.6(4)(a)(ii)).

29. The second precondition to be satisfied, is that the Court has the relevant power to grant development consent, as set out in cl 4.6(4)(b) of the BLEP, and has considered the elements for concurrence of the Secretary, as described in cl 4.6(5).

Satisfaction of Precondition One, cl 4.6(4)(a) of the BLEP

30. Satisfaction of this precondition (one) relies on assessment of the requirements of cl 4.6(4)(a) of the BLEP as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3),

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,

31. In response to subcll 4.6(3)(a) and (b) of the BLEP, the cl 4.6 written request concludes that a variation of the relevant development standard for attached dual occupancy development should be supported, as strict compliance to the numeric standard for the front building line width (in cl 4.1A(2)(a) of the BLEP) is both unnecessary and unreasonable, and there are sufficient environmental planning grounds, for the following reasons:

1. the proposed development generally complies with the objectives of the minimum lot size standard (cl 4.1A) of the BLEP and also those relevant for the zone in the BDCP. The objectives generally relate to lot ‘size’ (which the site satisfies) rather than ‘width’, and there are no ‘unreasonable’ impacts in amenity to the surrounding properties or wider area;

2. the orientation and design of the proposed dwellings on this corner lot is consistent with the controls set out in the BDCP, in presentation to the street and highlights the individual identities of the proposed dwellings;

3. the criticality of the lot width for a corner lot is not as significant as would be required in a mid-block lot, which must consider the presentation of both dwellings within a limited domain and where garages would dominate the front building line. Whereas, this site has the opportunity to present the dwellings in different orientations, thereby breaking up the presentation of structures to the street;

4. the proposed presentation of a dwelling to each frontage maintains the ‘rhythm’ along Tewinga Road; and

5. there are no adverse internal or adjoining property amenity impact as a result of the proposed development on the non-compliant site, particularly as the site has a northerly orientation and the different orientations of the dwellings assist with internal solar access and solar access to its southern neighbour.

32. I find that cl 4.6(4)(a)(i) of the BLEP is satisfied for the following reasons:

1. The proposed development has utilised the opportunity to orient the (2) dwellings such to reduce any perceived bulk and scale of the attached dual occupancy development. I consider a variation in the development standard is both reasonable and necessary as the proposed development has responded well to the curved shape/corner location of the lot, and optimised the environmental context of the land, namely orientation to improve amenity.

2. The shape of the site, particularly having its longer length along the ‘secondary’ (north) frontage constrains future development in its presentation to the streetscape. I also recognise that currently on the site, the existing dwelling fronts towards the north/second frontage to maximise sun exposure, with the side of the dwelling facing the eastern, primary frontage. The current dwelling does not present as a design that makes best use of the primary frontage, therefore the proposed development will improve the streetscape presentation.

3. The design of the proposed dwellings with two different orientations, and garaging along the secondary frontage breaks up the bulk and scale in the streetscape. I consider the front building line is best enhanced by the proposed development.

4. The proposed development achieves a design that is characteristic for the area with one dwelling per street orientation, and amenity impact is minimised, both internally and to the southern neighbour, due to this proposed orientation and design.

5. The proposed dwellings when viewed from the streetscape, will not adversely dominate the site nor the local area, and is not inconsistent with the character of the local area.

6. The cl 4.6 written request has addressed to my satisfaction that there are sufficient environmental planning grounds to vary the standard, as the proposed development does not result in adverse amenity impact, is consistent with the shape and size of the lot, and the variation will not be perceived adversely from the public domain.

33. For the reasons provided above, I am satisfied that the variation of the cl 4.1A of the BLEP for the minimum lot size standard as it relates to attached dual occupancies is reasonable, and there are sufficient environmental planning grounds to justify a variation of the standard of the 15m front building line width.

34. The objectives that relate to the R2 low density residential zone that are of particular relevance to the proposed development are objectives 1, 4 and 5 below:

Objectives of (R2) zone

• To provide for the housing needs of the community within a low density residential environment.

• To allow for the development of low density housing that has regard to local amenity.

• To require landscape as a key characteristic in the low density residential environment.

35. The development standard objectives that must be considered for this DA under appeal are set out in cl 4.1A(1)(a) of the BLEP as follows:

4.1A Minimum lot sizes and special provisions for dual occupancies

(1)  The objectives of this clause are as follows:

(a) to ensure that lot sizes are sufficient to accommodate development that is consistent with the objectives and planning provisions for dual occupancies,

(b) to minimise any likely adverse impact of development on the amenity of the area.

36. With regards to the requirements as set out in cl 4.6(4)(a)(ii) of the BLEP, the applicant explains that a variation in the development standard satisfies public interest benefit because:

1. the relevant zone objectives are achieved as:

1. the site satisfies the minimum (areal) lot size requirement;

2. the proposed (attached) dual occupancy development provides: for a variety of housing needs in the community; a site layout that promotes landscaping along Tewinga Street; and amenity of the residents with respect to solar access, privacy, traffic, density and streetscape; and

3. the proposed development is consistent with a low density development in the zone;

2. the development standard objectives for dual occupancies are achieved because the proposed development:

1. complies with the lot size requirement (of 500m2) and fits well within the dimensions of the lot in a manner that achieves consistency with relevant planning controls and objectives for dual occupancies; and

2. does not result in ‘unreasonable’ impacts to the amenity in the surrounding area, including solar access and privacy.

3. As the proposed development achieves the relevant objectives of both the zone and development standard, it is therefore in the public interest.

37. I make my observations based on the cl 4.6 written request discussion, as it relates to the objectives for the zone and development standard, and public interest benefit, in addition to relying on oral/written evidence of the experts. I am therefore able to discern sufficient detail to assess the requirements of cl 4.6(4)(a) of the BLEP.

38. With regards to the relevant zone objectives, I agree that the proposed development will provide housing opportunity in the local area, is consistent with the low density residential character of the zone and is designed having regard to the local amenity of the area. Therefore, I am satisfied that the zone objectives are achieved by the proposed development.

39. With regards to the development standard objectives, the cl 4.6 written request and Mr Apps’ oral evidence adequately address these objectives. I agree the proposed development presents in the streetscape as buildings in character with other developments in the locality, compatible in bulk and scale as perceived from the streetscape, and provide a consistent subdivision pattern. The proposed development does not breach any other development standard. Therefore, I find that the objectives of cl 4.1A(1) of the BLEP are achieved by the proposed development.

40. I find therefore that, pursuant to cl 4.6(4)(a)(ii), the proposed development is in the public interest.

41. For the proposed development, the requirements of cl 4.6(4)(a) of the BLEP have been satisfied.

42. I form the opinion and am satisfied that because the variation of cl 4.1A(2)(a) of the BLEP is reasonable and necessary, there are sufficient environmental planning grounds established and the proposed development is in the public interest, precondition one is satisfied.

Satisfaction of Precondition Two, cl 4.6(4)(b) of the BLEP

43. Satisfaction of this precondition (two) relates to concurrence of the Secretary, pursuant to cl 4.6(4)(b) of the BLEP. To satisfy cl 4.6(4)(b), the requirements of cl 4.6(5) below, should be considered:

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

44. As per the decision of Preston CJ in Initial Action, the Court is not required to obtain or assume the concurrence of the Secretary, although as expressed at [29] it should address cl 4.6(5) of the BLEP:

“[29] On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41].”

45. I find that the requirements of cl 4.6(4)(b) of the BLEP are satisfied for the following reasons:

1. The proposed development responds to the housing needs of the area, and satisfies the relevant zone and development standard objectives.

2. The proposed built form is consistent in street presentation with other surrounding developments, and a compliant development would not result in a markedly different nor better built form. For example, a single dwelling would not necessarily achieve a better outcome on the site due to the limited primary frontage and longer secondary frontage, which could result in a long fenceline and may not sit well within the shape of the site.

3. The proposed development achieves the objectives of the BDCP for dual occupancy, consistent with the relevant controls and provisions, and provides an improved presentation to the public domain to what is currently observed on the site. There are no adverse amenity impacts from the proposed development.

4. The proposed development has been determined to be in the public interest and will benefit the local area by provision of housing that is consistent with the character of the area.

5. The proposed development does not contravene any other development standards or controls.

46. I therefore consider that precondition two has been satisfied and as a result the proposed development satisfies cl 4.6(4)(b) of the BLEP.

Is there additional and/or adverse solar access to adjoining dwellings?

47. The experts agree that based on the amended plans before the Court, the contention that relates to inadequate provision of solar access to Dwelling B is resolved. The amended design therefore achieves the requirements of cl 4.15 of the BDCP.

48. The experts however, disagree that there is sufficient information to assess whether there is further solar access impact to an adjoining dwelling, located to the south of the site, and whether cl 4.16 of the BDCP is complied with. The relevant clause of the BDCP for the Courts consideration is cl 4.16 of Part B1 as follows:

“4.16 At least one living area of a dwelling on an adjoining allotment must receive a minimum 3 hours of sunlight between 8.00am and 4.00pm at the mid–winter solstice. Where this requirement cannot be met, the development must not result with additional overshadowing on the affected living areas of the dwelling.”

49. The experts agree that due to the southern location of this dwelling and its east-west orientation, the eastern (front), southern and northern sections of the dwelling, including any living spaces in these sections would not currently achieve the solar access requirement of 3 hours. The issue revolves around whether the western section of the dwelling currently gets 3 hours of sunlight to any living space located there and whether the proposed development adversely impacts this access.

50. The experts and I agree that it is not known where the living spaces are in the dwelling to the southern of the site, as no evidence has been provided on internal layout. It is also agreed that the dwelling currently has an awning extending over the back (west) porch and the resident of this dwelling did not object nor provide a submission to the DA.

51. Based on my observations on the site view and evidence before me, I find that I have sufficient information to form an opinion as to whether there is likely an additional impact to solar access to this dwelling.

52. I agree with Mr Apps that the proposed development will not result in any further adverse solar access to the neighbouring dwelling located on the southern boundary of the site. Based on the evidence before me I consider that it is likely that a portion of the rear of this dwelling, and in particular the windows on the south-western side will get up to 3 hours of sunlight between 1.00 to 4.00 pm on 21 June. The westerly facing direction of this dwelling will maximise sunlight access. I recognise that the window on the north-western side of the building will not get 3 hours solar access, however I have no evidence before me to suggest that this is a living area.

53. The proposed development has attempted to set back Dwelling A from the boundary to increase the opportunity for solar access to the rear of the dwelling. The neighbours dwelling is located south of the site, which limits its potential access to sunlight and it is currently affected by a porch with a vertical awning.

54. I am satisfied that this is an issue that does not result in the Court being unable to grant consent to the DA, as cl 4.16 of the BDCP is generally satisfied.

Conclusion

55. I am satisfied that the contentions raised by Council have been resolved. In particular my consideration of the amended cl 4.6 written request resolves the non-compliance with cl 4.1A of the BLEP as it relates to the front building line width. I find that the cl 4.6 variation of the development standard is satisfied.

56. I am satisfied that the proposed development is lawful and complies with the relevant provisions of the EPA Act, particularly sub ss 4.15(1)(a)(i), (c) and (e), whereby the site is suitable, satisfies the environmental planning instruments and is in the public interest.

57. I therefore find that the Court has the power to grant consent to DA 177/2018.

Conditions

58. The conditions of consent for DA 177/2018 provided in Annexure A are as per the draft conditions provided by the respondent in Exhibit 5, with the following amendments:

1. Change table in Condition 1 to include the reference to the soil/water construction management plan Version D, dated 29 April 2019 and Subdivision plan Version E, dated 30 May 2019, and

2. In Condition 21, remove all references to a ‘swimming pool’.

Orders

59. The orders of the Court are:

1. The appeal is upheld.

2. Amended Development Application 177/2018 for demolition of existing structures, construction of attached dual occupancy dwellings, and Torrens title subdivision of one lot into two lots with a dwelling on each lot, on Lot 1 DP 29650, also known as 1A Tewinga Road, Birrong is approved, subject to the conditions in Annexure A.

3. The exhibits, except Exhibits 1, 3, 5, A, E and F are returned.

…………………….

Sarah Bish

Commissioner of the Court

Annexure A 

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Decision last updated: 05 June 2019