Court Grants Development Consent for Residential Construction

The claimant appealed the refusal of a development application for residential construction. The court granted development consent after a conciliation conference, subject to conditions that the development complies with the Cumberland Local Environmental Plan and other statutory requirements.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [NAME_1] v Cumberland Council [2024] NSWLEC 1183 Hearing dates: Conciliation Conference on 21 February and 11 and 15 March 2024 Date of orders: 16 April 2024 Decision date: 16 April 2024 Jurisdiction: Class 1 Before: [NAME_2] Decision: [ADDRESS] orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, agreed in the sum of $3,000.00 within 28 days of this order. (2) The appeal is upheld. (3) Development consent is granted to development application [NAME_3] 2022/0393 for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 [ADDRESS] [POSTCODE], legally known as Lots 34 and 35 in DP 10575, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and [ADDRESS] 1979, s 34 Cumberland Local Environmental Plan 2021, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7 and 6.12 Environmental Planning and Assessment Regulation 2021, ss 23 and 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, ss 6.7, 6.65, 10.2, 10.18, 10.19, 10.20, 10.20, 10.21, 10.22, 10.23, 10.24 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Texts Cited: Cumberland Development Control Plan 2021 Category: Principal judgment Parties: [NAME_1] (Applicant) Cumberland Council (Respondent) Representation: Counsel: [redacted] [NAME_5] (Solicitor) (Respondent)

Solicitors: [redacted] Cumberland Council (Respondent) File Number(s): 23/266668 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Cumberland Council of development application [NAME_3] 2022/0393 (the [NAME_3]) for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 [ADDRESS] [POSTCODE], being Lots 34 and 35 in DP 10575 (the site). 2. [ADDRESS] arranged a conciliation conference under s 34(1) of the Land and [ADDRESS] 1979 (LEC Act) between the parties, which was held initially on 21 February 2024. I presided over the conciliation conference, which commenced with a site inspection. There were no submissions to the [NAME_3].

3. The s 34 conciliation conference was adjourned to 11 March 2024 to allow time for amended plans to be prepared by the applicant and assessed by the respondent, and subsequently further adjourned to 15 March 2024 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended [NAME_3]).

4. After the conciliation conferences the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The applicant proposed a number of minor changes to the proposed development at the s 34 conciliation conference on 21 February 2024, including:

1. Creating a building separation of the front dwelling units at the upper floor to a depth of 1.8m;

2. Private open space areas to comply with Council's requirements;

3. Dwelling size to be made compliant with the Cumberland Local Environmental Plan 2021 ([NAME_7]) (no cl 4.6 variation to be required for FSR development standard); and 4. Redesign of pedestrian access to rear Units 13 and 14 and the adjacent area of communal open space.

1. The respondent completed its assessment of the amended plans and documents and advised that it had formed the view that all contentions raised in its Statement of Facts and Contentions (SOFAC) have been satisfactorily addressed.

2. A signed s 34 agreement with Annexures 'A' and 'B' was filed with the Court on 15 March 2024, with amended plans and additional material (the amended [NAME_3]) filed on 20 March 2024, as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

3. 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. 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.

4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Matters

Owner's consent 1. The parties advise that Owner's Consent by the [NAME_9] of the lot comprising the site accompanied the [NAME_3] in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

Community Participation (Sch 1, Div 2, s 7(1)) 1. The respondent advised that the [NAME_3] was notified between 11 and 25 August 2022. No submissions were received in response to that notification.

Referral to [NAME_10]

1. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 ([NAME_11]) requires that written notice of the proposed development is required to the electricity supply authority as the site is within 5 metres of overhead electricity power lines. The respondent advised that the [NAME_3] was referred to [NAME_10] who alluded to separation requirements from wires, and safe construction techniques.

Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Cumberland Local Environmental Plan 2021 ([NAME_7]) 1. [NAME_7] applies to the site and to the proposed development. Under [NAME_7] provisions:

1. The site is zoned Medium Density Residential zone pursuant to cl 2.2 of [NAME_7]; and:

1. Development for the purpose of attached and semi-attached dwellings is permissible with consent pursuant to cl 2.3 of [NAME_7]; and 2. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of [NAME_7]; and 3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

1. Pursuant to cl 4.3 of [NAME_7] the maximum height of buildings on the site is 9m; and 1. The parties advise that the amended [NAME_3] provides a maximum height of 8.5m in compliance with this development standard.

1. Pursuant to cl 4.4 of [NAME_7] a maximum floor space ratio (FSR) of 0.75:1 applies to the site; and 1. The parties advise that the proposed development has a FSR of 0.749:1, in compliance with this development standard.

1. Pursuant to cl 5.10 of [NAME_7], the parties advise that the site does not contain a heritage item, is not located within a heritage conservation area and is not located within close proximity of a heritage item. The provisions of clause 5.10 are therefore not applicable to the development.

2. Pursuant to cl 5.21 of [NAME_7], the parties advise that the site is not within the flood planning area and therefore no consideration of clause 5.21(2) is required.

3. Clause 6.1 of [NAME_7] relates to acid sulfate soils. The parties advise that the site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map; and 1. Development consent is not required under cl 6.1(2) as there is no class 1, 2, 3 or 4 land within 500m of the site, including land located within the nearby Canterbury Bankstown local government area and mapped under its local environmental plan.

1. Clause 6.2 of [NAME_7] sets out the matters that the consent authority is required to consider before granted development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the site and adjoining properties. The parties advise that:

1. The development will not disrupt or detrimentally effect drainage patterns and soil stability in the locality;

2. The earthworks are related to and necessary for the future use and redevelopment of the land;

3. The quality of soil to be excavated is unknown but conditions of consent can be imposed to ensure it is disposed of to an appropriate location;

4. Setbacks to the basement and appropriate construction techniques can ensure the excavation has insignificant and acceptable amenity effects for adjoining properties;

5. Fill is not required to accommodate the development. Proposed condition of consent No. 54 requires the disposal of excavated material at an appropriate location;

6. The likelihood of disturbing relics is remote and not of determinative weight;

7. The site is not proximate to and will have negligible to no impact upon a waterway, drinking water catchment or environmentally sensitive area; and 8. In the event of consent being granted, proposed condition of consent No. 70 requires sediment and erosion control during site works.

1. Clause 6.4 of [NAME_7] requires the consent authority to be satisfied that various essential services are available or that adequate arrangements have been made to make them available. The parties advise that they are satisfied that water supply, electricity supply, sewage disposal, stormwater drainage and suitable road access are available or can be made available.

2. Clause 6.7 of [NAME_7] provides stormwater management controls. In relation to considerations at cl 6.7(2), the parties advise that:

1. The proportion of water permeable surfaces is within reasonable expectation for this form of development;

2. An onsite stormwater retention system has not been provided and having regard to the nature of the development is not overly practicable and not assessed as being essential; and 3. Adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, to the extent they arise, can be minimised and mitigated by conditions including by the provision of sediment and erosion controls (proposed condition of consent refers).

1. Clause 6.12(2) of [NAME_7] includes mandatory considerations regarding urban heat. The parties advise that:

1. The development can accommodate sufficient tree canopy, open space and deep soil zones to achieve urban cooling benefits, and the building is designed to achieve high passive [NAME_12]. These outcomes considered in conjunction with roofing, paved surfaces, awnings, eaves, heating, ventilation, air conditioning and green infrastructure result in a satisfactory urban heat outcome.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant's amended [NAME_3] is accompanied by BASIX Certificate 1299523M_02 prepared by [NAME_12] and dated 6 April 2023.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The savings provisions at s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) provide that former Chapters 7-12 as were in force immediately before their repeal by State Environmental Planning Policy Amendments (Water Catchments) 2022 continue to apply to an application for consent lodged but not finally determined by 21 November 2022; and 1. The parties advise that pursuant to s.10.2(2) of Biodiversity and Conservation SEPP as at the date of lodgement of the [NAME_3], the site was not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, a wetland protection area, or containing a heritage item. Section 10.18(a) of the SEPP required matters referred to in Chapter 10 Part 10.3 Division 2 of the SEPP be taken into consideration by the consent authority before granting development consent; and 2. The parties' position is that the proposed development will have a negligible impact, or no impact or no implications, on the Division 2 matters contained at ss 10.19, 10.20, 10.21, 10.22, 10.23 and 10.24.

State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and 1. The parties advise that a Preliminary Site Investigation Report by [NAME_13] accompanied the [NAME_3]. This investigation found no contamination and the parties submit that the land is suitable for the proposed development; and 2. [ADDRESS] is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 ([NAME_11]) applies to the site as the proposed development is within 5m of overhead electricity power lines; and 1. The parties advise that written notice was provided to [NAME_10] who raised no objection to the proposed development.

Cumberland Development Control Plan 2021 1. The Cumberland Development Control Plan 2021 (the DCP) applies to the site; and 1. The respondent advises that the amended [NAME_3] satisfactorily addresses the provisions of the DCP that were raised in the SOFAC.

Conclusion 1. Having considered the advice of the parties provided above at [15-20], I am satisfied that:

1. The applicants' amended [NAME_3] can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and 3. Approval of the proposed development is in the public interest.

1. Further, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

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. 3. [ADDRESS] notes:

1. That Cumberland Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application [NAME_3] 2022/0393 made on 15 March 2024 to rely on the documents specified below: Ref/Dwg No Title/Description Prepared By Rev Date/s Architectural Plans (project no. J0250) 01 Front perspective - Schedule of Finishes [COMPANY_14] M 28/02/2024 02 Site Plan 03 Consolidated Plan 04 Subdivision Plan 05 Sediment Control Plan 06 Streetscape 13 Demolition Plan 14 Cut/Fill Plan 15 Basement Plan 16 Ground Floor Plan 17 First Floor Plan 18 Roof Plan 19 Units 1-4 Elevations/Section 20 Units 5-8 Elevations/Section 21 Units 9-12 Elevations/Section 22 Units 13-16 Elevations/Section 23 Overall Elevations 24 Driveway Cross Section 25 Waste Collection Plan Stormwater Drainage Concept Design 2253-S1/4 Basement Drainage Plan & Sediment Control Detail [COMPANY_15] C 10/01/2024 2253-S2/4 Ground Floor Drainage Plan, OSD Detail & Screen Detail 2253-S3/4 First Floor Drainage Plan & Rainwater Tank Detail 2253-S4/4 Roof Drainage Plan & Gutter Detail Landscape Plan (Project No. 48863c) L-01/2 Landscape Plan (Front) [NAME_17] C 01/03/2024 L-02/2 Landscape Plan (Rear)

1. The amended [NAME_3] was accompanied by BASIX Certificate 1299523M_02 prepared by [NAME_12] and dated 6 April 2023.

2. The amended [NAME_3] was filed with the Court on 20 March 2024. 1. [ADDRESS] orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, agreed in the sum of $3,000.00 within 28 days of this order.

2. The appeal is upheld.

3. Development consent is granted to development application [NAME_3] 2022/0393 for the demolition of existing structures, consolidation of 2 allotments and the construction of 16 attached dwellings and semi-detached dwellings with strata title subdivision at 1-3 [ADDRESS] [POSTCODE], legally known as Lots 34 and 35 in DP 10575 subject to the conditions of consent in Annexure A.

……………………….

[NAME_2]

Acting Commissioner of the Court Annexure A

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