Land and Environment Court New South Wales Medium Neutral Citation: Hoda Pty Ltd v Strathfield Municipal Council [2021] NSWLEC 1108 Hearing dates: Conciliation conference on 17 December 2020 Date of orders: 2 March 2021 Decision date: 02 March 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [11] Catchwords: DEVELOPMENT APPLICATION – construction of garage and in-ground pool – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Strathfield Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020) Category: Principal judgment Parties: Hoda Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Sorensen (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Hall and Wilcox (Respondent) File Number(s): 2020/153022 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Strathfield Municipal Council of Development Application DA2020/25 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 606.6m2 parcel of land identified as Lot 100 in DP 1228376 at 61 Broughton Road Strathfield (the site). The DA as submitted to the Strathfield Municipal Council (Council) on 5 February 2020 sought consent for the construction of a detached single storey garage, new driveway, in-ground pool and associated works within the site. The DA was later amended to remove the new driveway. The DA was exhibited between 17 February and 2 March 2020. No submissions were received. 3. On 24 April 2020 the DA, as amended and illustrated in the DA plans prepared by BKA Architecture, Revision A dated 15/1/20, was refused by Council's Internal Development Assessment Panel. On 22 May 2020 the Applicant lodged this Class 1 Appeal with the Court. 4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the s 34AA conciliation conference held on 17 December 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (December 2020) restrictions in place at the time, and as agreed between the parties, there was no site view as part of the s 34AA conciliation process, and no oral submissions were taken. 5. At the conciliation conference the parties advised they had reached an agreement, which had been signed by them and filed with the Court on 10 December 2020. A copy of that agreement and other associated documents, including the final DA architectural and landscape plans, and a revised BASIX certificate were filed with the Court on 14 December 2020. 6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Strathfield Local Environmental Plan 2012 (SLEP 2012) are: 1. The development is for the purposes of ancillary structures, which is a use permissible with consent in the R2 Low Density Residential Zone (R2 Zone), and is consistent with the objectives of the R2 Zone. 2. The maximum height of the development, at 8.02m, complies with the 9.5m height of buildings development standard at cl 4.3 of the SLEP 2012. 3. The floor space ratio (FSR) of all the development on the site, at 0.58:1, complies with the 0.6:1 FSR development standard at cl 4.4 of the SLEP 2012. 1. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), a BASIX Certificate numbered A366635_02 dated 9 December 2020 has been provided demonstrating compliance with the BASIX SEPP, as referred to in the s34 agreement and Condition 1 of the consent. 2. In relation to the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Non-Rural Vegetation SEPP), the development complies with the aims of the Non-Rural Vegetation SEPP as it includes measures to protect the Port Jackson fig tree located on the adjoining property, as set out in the Tree Management Plans dated 01/12/20 and referred to in Conditions 1 and 18 of the consent. Disposal of proceedings in accordance with the parties' decision 1. 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' agreement. 2. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans Site Plan DA-003 D 24/11/20 BKA Architecture Excavation Plan DA-004 D 24/11/20 BKA Architecture Ground Floor Plan DA-100 D 24/11/20 BKA Architecture Roof Plan DA-101 D 24/11/20 BKA Architecture Elevation DA-200 D 24/11/20 BKA Architecture Section DA-300 D 24/11/20 BKA Architecture Colour Sample Board DA-600 D 24/11/20 BKA Architecture Landscape plans Hardscape Plan LPDA 20 – 104/1 E 02/12/20 Conzept Landscape Architects Landscape Plan LPDA 20 – 104/2 E 02/12/20 Conzept Landscape Architects Details LPDA 20 – 104/3 E 02/12/20 Conzept Landscape Architects Details LPDA 20 – 104/4 E 02/12/20 Conzept Landscape Architects Specification LPDA 20 – 104/5 E 02/12/20 Conzept Landscape Architects Reports Tree Management Plan prepared by Tree Wise Men dated 1 December 2020 BASIX Certificate no. A366635_02 prepared by Outsource Ideas Pty Ltd dated 9 December 2020 1. The appeal is upheld. 2. Development Consent is granted to Development Application No. DA2020/25 for the construction of a detached single storey garage, in-ground pool and ancillary works at 61 Broughton Road, Strathfield, subject to conditions contained in Annexure A. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (228822, 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: 02 March 2021