Land and Environment Court New South Wales Medium Neutral Citation: Graham v Northern Beaches Council [2020] NSWLEC 1335 Hearing dates: Conciliation conference on 24 July 2020 Date of orders: 04 August 2020 Decision date: 04 August 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. (2) The applicant's written request dated 24 July 2020 prepared by Minto Planning Services pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 (PLEP) seeking a variation of the development standard for height of buildings set out in clause 4.3 of PLEP is upheld. (3) The appeal is upheld. (4) Development Application DA 2020/0028 for demolition works and construction of a dwelling house including a swimming pool on land legally described as Lot 24 in DP 11552 known as 11 Ocean Road, Palm Beach, NSW is approved subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2014 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Julie Graham (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) K Webber (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/102404 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Northern Beaches Council's refusal of Development Application 2020/0028 ('DA'). 2. The DA seeks consent for demolition works, certain tree removal and then construction of a dwelling house, swimming pool, landscaping and associated work at 11 Ocean Road, Palm Beach ('site'). 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 24 July 2020, and at which I presided. Amended plans were considered at the conference which among other things provided for the scaling back of the development. At the conciliation conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. Jurisdictional considerations 1. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. In advice emailed to the Court on 23 July 2020, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, and noting this advice, I am satisfied as indicated below. 1. The proposal is permissible under Pittwater Local Environmental Plan 2014 ('LEP'), with dwelling houses permissible in the E4 Environmental Living zone that applies to the site. The following additional provisions of the LEP need consideration: 1. In accordance with cl 2.3 of the LEP, I have had regard to the zone objectives. 2. On the advice of the parties, I am satisfied that the proposal meets development standards, with the exception of the building height control which I consider below under a separate heading. 3. On similar advice, I am satisfied with regard to essential services availability (cl 7.10). 4. I also note the advice of the parties that the matters listed at cl 7.5(3) of the LEP in relation to coastal risk planning have been satisfied (this was based on a Coastline Risk Management Report accompanying the application). 5. The matters required to be considered at cll 7.1 (Acid sulfate soils), 7.2 (Earthworks), 7.6 (Biodiversity) and 7.7 (Geotechnical hazard), have been considered, and I am satisfied relevantly in regard to each of these matters. In particular I note the advice of the parties that in regard to biodiversity I am satisfied that significant adverse environmental impact has been avoided satisfies the requirement of cl 7.6(4). I further note the advice of the parties the proposal minimises or avoids geotechnical risk or impact. This matter is covered in the Geotechnical Report prepared by White Geotechnical Group dated 30 August 2019 and the conditions of consent. 1. The following additional jurisdictional matters arise in other environmental planning instruments: 1. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land ('SEPP 55'), consideration has been given as to whether the subject site is contaminated. I am advised that Council's relevant experts determined that no technical examination was required due to the site's historical use for residential purposes. 2. The provisions of cl 45(2) of State Environmental Planning Policy (Infrastructure) 2007 arise due to the proximity of the to an overhead power line. The written notice to the electricity supply authority was given and no response received. 3. Certain provisions of State Environmental Planning Policy (Coastal Management) 2018 are relevant. Specifically, I mention that Council has given attention to cll 13, 14 & 15 of this SEPP and with the aid of the Statement of Environmental Effects which accompanied the application, is duly satisfied in regard to the requirements. On this basis I too am satisfied. 1. I am advised that the application was notified in accordance with requirements and consideration has been given by Council to public submissions as required under s 4.15 of the EPA Act. I have also considered the summary of the submissions as outlined Council's Statement of Facts and Contentions filed on 22 May 2020. Consideration of the development standard contravention 1. The particular jurisdictional consideration relating to the contravention of the building height standard is now considered. 2. The parties agree and I concur that the height standard applying to the development under cl 4.3 of the LEP is 10m, and the proposal contravenes this standard. 3. The applicant is seeking an exception to compliance with the development standard under cl 4.6 of the LEP. In accordance with cl 4.6(3) of the LEP, the applicant has filed a written request to vary the building height standard, which was prepared by Minto planning services and dated 24 July 2020. The written request indicates the proposal has a maximum height of 10.85m. 4. I have reviewed the request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained. 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of the LEP). This is because the written request shows how, otherwise, the development achieves the objectives of cl 4.3. The written request does this by considering each object of and explaining how the proposal: 1. will be consistent with the desired character of the locality because of the quality of its architectural form and its consistency with each of the zone objectives 2. is compatible with the height and scale of surrounding and nearby developments as it will present as having a similar height, bulk and scale to these developments 3. minimises overshadowing given that it will not significantly increase overshadowing beyond that which currently exists 4. does not result in unreasonable view loss and thus allows for the reasonable sharing of views 5. does not involve excessive excavation and thus responds sensitively to the natural topography 6. is not in the vicinity of heritage conservation areas or heritage items and is a low-impact development minimising adverse visual impacts on the natural environment. 1. The written request outlines certain environmental planning grounds seen as justifying the contravention. The planning grounds of particular pertinence to me are that the site has previously been excavated and this existing excavation has the effect of exaggerating the building height non-compliance. Or put another way, the contraventions would not be apparent when viewed from either adjoining properties or the street. I am satisfied that there are sufficient environmental planning grounds to justify contravening the development standard. 2. Together the above two findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied. 3. Like the author of the written request, I find the proposal consistent with the objectives of the zone. This is because it provides for residential development which is located within an area of special ecological, scientific or aesthetic values, and without bringing unreasonable adverse effects on such values. The development integrates well with the landform and landscape and is of relatively low density and scale. The development would largely occupy the footprint and use the terracing of an existing dwelling. An existing vegetation corridor to the rear of the existing and proposed dwellings would be retained. I adopt the reasons contained in the written request to find that the proposal is consistent with the objectives of the building height standard (indicated in cl 4.3(1) of the LEP). 4. On the basis of the paragraph above, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the relevant zone. Therefore, the test of cl 4.6(4)(a)(ii) of the LEP is satisfied. 5. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) but note that I have considered the matters in cl 4.6(5) of the LEP in coming to my conclusions in regard the contravention and find no matters of significance arise in regard to these matters. 1. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'. 2. The applicant's written request dated 24 July 2020 prepared by Minto Planning Services pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 (PLEP) seeking a variation of the development standard for height of buildings set out in clause 4.3 of PLEP is upheld. 3. The appeal is upheld. 4. Development Application DA 2020/0028 for demolition works and construction of a dwelling house including a swimming pool on land legally described as Lot 24 in DP 11552 known as 11 Ocean Road, Palm Beach, NSW is approved subject to the conditions set out in Annexure "A". …………………………….. P Walsh Commissioner of the Court Annexure A (305961, pdf) Plans (18669777, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020