Worthington v Northern Beaches Council [2021] NSWLEC 1059

Land and Environment Court New South Wales

Medium Neutral Citation: Worthington v Northern Beaches Council [2021] NSWLEC 1059 Hearing dates: Conciliation held on 18 January 2021 Date of orders: 08 February 2021 Decision date: 08 February 2021 Jurisdiction: Class 1 Before: Bish C Decision: Refer to orders below at [29] Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – mitigated flood risk – variation of standard for limited development in foreshore area – 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 No 55—Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Pittwater 21 Development Control Plan Category: Principal judgment Parties: Brook Michael Worthington (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Gough (Solicitor) (Respondent)

Solicitors: Brook Worthington Lawyer (Applicant) Storey & Gough (Respondent) File Number(s): 2020/166784 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2020/0155 by Northern Beaches Council (hereafter the Council) which seeks alterations and additions to an existing dwelling and other structures, on Lot 7 DP 17768, also known as 95 Wimbledon Avenue, North Narrabeen (hereafter the site). 2. The proposed development sought for approval, as shown on the amended plans, specifically includes the following works: * Demolition of existing laundry and toilet, rear face of dwelling, stairs and part of roof, internal walls, windows and doors, and paving; * Construction of new double carport and rear elevated deck; * Alterations and additions to existing structures including new laundry, stairs and first floor level storage area; and * Installation of a rainwater tank and landscaping, including tree removal. 1. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The Court agreed to the parties' request for a conciliation conference pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act), which was held on 18 January 2021, without an onsite view, and by Microsoft (MS) Teams in Court. 3. Based on the amended plans (in Annexure A), together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2020/0155 with conditions. 4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to the requirements in s 4.15(1), to grant consent to DA 2020/0155, with conditions, as described in Annexure C. 5. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as, consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Pittwater Local Environmental Plan 2014 (PLEP); and the Pittwater 21 Development Control Plan (P21DCP). 6. The parties agree that the proposed development complies with the provisions of SEPP 55. The respondent has assessed that the site as being used historically for residential purposes and the parties agree that the site is suitable for the proposed development, thereby satisfying the requirements of SEPP 55. 7. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, and provided in compliance with the SEPP BASIX provisions. 8. The proposed development on the site is located within the E4 Environmental Living zone, as identified in the PLEP. The proposed development is permissible and satisfies the objectives of this zone. The parties agree that the relevant provisions of the PLEP are addressed to their satisfaction. The relevant contentions are resolved by the DA's amended plans and supporting documents, and conditions of consent. 9. The parties agree that the site is located on flood prone land, pursuant to cl 7.3 of the PLEP, and that the existing habitable floor levels of the dwelling are below the flood planning level. The parties explain that there is no additional and an acceptable risk to residents from the proposed development, and that there is an improved flood storage from the proposed works. Therefore, the requirements of cl 7.3 are achieved. 10. The proposed development does however breach the areal requirements of cl 7.8 of the PLEP, which requires limiting development within the designated foreshore area. 11. It is accepted by the parties that a cl 4.6 written request seeking variation of cl 7.8 of the PLEP is required to be considered by the Court to grant consent to the DA, pursuant to cl 4.6 of the PLEP. 12. The written request for variation explains that portions of the rear elements of the proposed development are located within the foreshore area, as defined in the PLEP. 13. The cl 4.6 written request explains that the breach of the foreshore area standard does not result in a development that causes adverse environmental or amenity impacts. The proposed development responds positively to existing structures located in this area. 14. The proposed development is not inconsistent with the zone objectives or the relevant development standard. The portions of the 'non-compliant' building forms are not readily discernible in the context of the site or present as out of character. 15. The proposed development satisfies the objectives of the zone and the relevant development standards. As the proposed development is in character with the local area, results in no adverse environmental and amenity impacts, and satisfies the relevant standard objectives, compliance with the development standard would be both unreasonable and unnecessary. 16. The written request considers that a variation allowing limited development with the foreshore area development standard, pursuant to cl 7.8 of the PLEP is satisfied, and flexibility of the standards is justified. 17. Having reviewed the (cl 4.6) written request, I agree that the written request for variation of the foreshore area standard addresses the requirements of cl 4.6(3) of the PLEP by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the PLEP is satisfied to vary the foreshore area development standard, and allow limited development in this area, as proposed. 18. The proposed development, as described to the Court, is consistent with the objectives of the zone (cl 2.3 for E4 Environmental Living zone), and cl 7.8, as established in the PLEP. 19. The proposed non-compliance of the standard does not result in adverse impact to the residents of the proposed development, adjoining properties, or the character of the local area, and will have minimal environmental impact. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii). 20. I accept the cl 4.6 written explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of the foreshore area development standard is not inconsistent with cll 4.6(4)(b) or (5) of the EPA Act. 21. I am satisfied that the requirements of cl 4.6 of the PLEP have been addressed and that a variation in the foreshore area standard, as established in cl 7.8, should be upheld. 22. The parties agree that the DA was publicly notified in accordance with the P21DCP. During the notification period for this DA under appeal, no submissions in objection were received by Council. 23. The parties advise the Court that the amended plans that support the DA have been considered in the context of the site and surrounding area, particularly the proximity to the foreshore area and potential for flooding to the existing dwelling, including potential risk to persons. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties. 24. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions, as raised. 25. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2020/0155 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 26. 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. 27. The Court orders that: 1. Leave is granted to the Applicant amend the development application and to rely on the following amended plans and reports, which are contained in Annexure "A": 1. Architectural Plan prepared by Hosking Munro Pty Ltd: 1. Drawing No. DA100 Site / Roof Plan (Rev 'J') dated 25 September 2020; 2. Drawing No. DA101 Ground Floor Plan (Rev 'J') dated 25 September 2020; 3. Drawing No. DA102 Storage Floor Plan (Rev 'C') dated 25 September 2020; 4. Drawing No. DA103 Existing + Proposed GFA Calculation Plans (Rev 'J') dated 25 September 2020; 5. Drawing No. DA104 Existing + Proposed Landscape Area Calculation Plans (Rev 'F') dated 25 September 2020; 6. Drawing No. DA105 Flood Storage Area Calculation Plan (Rev 'A') dated 25 September 2020; 7. Drawing No. DA200 East Elevation and South Elevation (Rev 'J') and dated 25 September 2020; 8. Drawing No. DA201 West Elevation and North Elevation (Rev 'J') dated 25 September 2020; 9. Drawing No. DA300 Section A-A +B-B (Rev 'H') dated 25 September 2020; 10. Drawing No. DA301 Section C-C (Rev 'C') dated 25 September 2020. 1. Clause 4.6 variation request prepared by Boston Blyth Fleming dated 10 October 2020. 2. Flooding Report prepared by Stellen Consulting and dated 15 October 2020. 3. BASIX Certificate No. A403773 prepared by Group Architects P/L and dated 15 January 2021. 1. Leave is granted to the applicant to rely on an amended Class 1 Application which is contained in Annexure "B". 2. The applicant's written request under clause 4.6 of the Pittwater Local Environmental Plan 2014 seeking a variation of the development standard for development within foreshore areas under clauses 7.8 of the Pittwater Local Environmental Plan 2014 is upheld. 3. The appeal is upheld. 4. Development Consent is granted to DA2020/0155 for alterations and additions to a dwelling house located at 95 Wimbledon Avenue, North Narrabeen subject to the conditions in Annexure "C".