Land and Environment Court New South Wales Medium Neutral Citation: Sharma v Bayside Council [2020] NSWLEC 1673 Hearing dates: Conciliation conference on 18 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [15] Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between parties – orders Legislation Cited: Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX 2004) Category: Principal judgment Parties: Ashween Krishan Sharma (First Applicant) Sumitra Sharma (Second Applicant) Bayside Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicants) A Epstein (Solicitor) (Respondent) Solicitors: Swaab (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/380714 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the refusal of Development Application DA 2019-261 ('DA') by Bayside Council ('Council'). 2. The DA seeks approval for alterations, additions and use of an existing dwelling on Lot 118 in DP11375 on land known as 52 Dudley Street, Pagewood ('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 18 December 2020. I presided over the conciliation conference. 4. At the conciliation conference, the parties provided evidence that an agreement, under s 34(3) of the LEC Act, had been reached between them. The decision agreed by the parties is for leave to be granted to amend the DA, and for the grant of development consent subject to conditions. 5. 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. Jurisdiction 1. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties provided a statement outlining jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (received by email dated 17 December 2020). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below. Botany Bay Local Environmental Plan 2013 1. I accept the advice of the parties that: 1. The proposed development (alterations, additions and use of an existing dwelling) is permissible with consent within the R2 Low Density Residential zone in Botany Bay Local Environmental Plan 2013 ('BBLEP'). 2. The works to be approved under the DA do not breach the height or FSR controls under BBLEP. 3. In regard to cl 6.1, preparation of an acid sulfate soil management plan is not required. This is because I accept the advice of the parties that the site is identified as within Class 5 on BBLEP's Acid Sulphate Soils map and the development involves no excavation works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD and by which the water table is likely to be lowered below 1m AHD adjacent Class 1,2,3 or 4 land. 4. In regard to cl 6.3 and stormwater management, I note the advice that stormwater from unauthorised roofed and hard surfaced areas are collected, pipe and drained to connected existing stormwater system operational at the site. I accept the advice of the parties that this existing arrangements will ensure a minimised impact of suburban stormwater on the site and adjoining properties, native bushland and downstream receiving waters. I am satisfied in regard to those matters listed at cl 6.3(3). State Environmental Planning Policy No 55—Remediation of Land 1. Clause 7 of State Environmental Planning Policy No 55—Remediation of Land ('SEPP 55') requires a consent authority to consider the contamination and remediation of land when determining a development application. 2. Evidently, the site has a long history of being used for a residential use, as do surrounding sites. I am satisfied with the position adopted by Council that the likelihood of contamination is negligible, and no further investigation is warranted. State Environmental Planning Policy (Building Sustainability Index: BASIX 2004) 1. The Amended DA is accompanied by a BASIX Certificate satisfying this requirement. Notification of DA and public interest considerations 1. The original DA was placed on notification between 26 July and 12 August 2019 and a single submission was received. By express post a letter dated 19 November 2020 Council provided a copy of the amended plans to the adjoining neighbour/objector for information purposes. I have discussed the substance of the objections with the parties and am satisfied that there has been due consideration of submissions in accordance with s 4.15(1)(d) of the EPA Act. Conclusion 1. I accept the advice of the parties that if the proposed development is approved it would not result in a contravention of the EPA Act, an environmental planning instrument or the regulations. 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. I do note the considerable history behind the matter, related to what are suggested to be unauthorised works on the site. In accordance with the correct statutory approach, the DA does not seek consent for any existing works, there is a requirement for a Building Information Certificate to be provided for these works (Condition 56). Proposed works are delineated, relevantly, in the approval plans, including works aimed at addressing concerns raised in submissions. 3. 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. 4. The Court orders that: 1. The Applicant is granted leave to amend its development application to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans DA01 Scope of Application AB3D Building Design 9 October 2020 DA02 Site Plan and Schedules 9 October 2020 DA03 Floor Plans 9 October 2020 DA04 Elevations 9 October 2020 DA05 Sections 9 October 2020 1. The Applicant is granted leave to amend its development application to rely upon the following documents: Title Prepared by Date Building Code of Australia report (Unauthorised works and change of use) BCA Logic 16 June 2020 BCA Performance Solutions Report BCA Logic 17 June 2020 Expert witness opinion on structural adequacy of unauthorised works Patridge 17 June 2020 Basix Certificate A352315_02 Ab3d Building Design 9 October 2020 Structural Design Certificate Partridge 15 October 2020 1. The appeal is upheld. 2. Development Application No. DA-2019/261, for the alterations, additions and use of an existing dwelling on Lot 118 in DP11375 on land known as 52 Dudley Street, Pagewood, is approved subject to the conditions at Annexure A. ………………………. Peter Walsh Commissioner of the Court Annexure A (202494, pdf) Plans (943676, 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: 23 December 2020