Elias v Cumberland Council [2021] NSWLEC 1143

Land and Environment Court New South Wales

Medium Neutral Citation: Elias v Cumberland Council [2021] NSWLEC 1143 Hearing dates: Conciliation conference on 10 March 2021 Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: Refer to orders [16] Catchwords: DEVELOPMENT APPEAL – consolidation of lots – multi-dwelling housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55—Remediation of Land State Environmental Planning Policy (Infrastructure) 2007 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Holroyd Development Control Plan 2013 Category: Principal judgment Parties: Simon Elias (Applicant) Cumberland Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent)

Solicitors: Swaab (Applicant) Cumberland Council (Respondent) File Number(s): 2019/342348 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of Development Application No. 2017/534/1, for the consolidation of two lots, demolition of existing structures on site, construction of eleven (11) multi dwelling housing units over a basement car park and associated landscaping and drainage works (the Proposed Development) on land legally described as Lot 100 and Lot 101 DP 5296, known as 5-7 Richardson Street, Merrylands (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 10 March 2021. I have presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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 development application. 5. 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 to be as follows: 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 2. State Environmental Planning Policy 55—Remediation of Land (SEPP 55) cl 7; 3. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP); 4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; and 5. Holroyd Local Environmental Plan 2013 (HELP). 1. The parties explained how the above jurisdictional prerequisites have been satisfied and I will deal with each of them in turn below. 2. A BASIX certificate is submitted with the amended application and identifies that the development complies with applicable water, thermal comfort and energy targets as required by cl 3 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000. I find that this jurisdictional prerequisite has been satisfied. 3. Clause 7 of SEPP 55 requires consideration of contamination and remediation of land. As required by cl 7, I am satisfied that the Site is not within an investigation area, that development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the Site and that historic zoning controls for the Site did not make lawful the carrying out of activities nominated in Table 1. I accept that the Site is not known to the Respondent Council to be contaminated and does not adjoining land known to be contaminated. I have also read the Statement of Environmental Effects prepared by Think Planners and filed with the Class 1 Application on 31 October 2019 and agree with the statement on page 25 as follows: "The development site has historically been utilised for residential purposes with no known potentially contaminating activities being conducted on the site. Review of aerial photographs and the site itself does not indicate the presence of any potential contamination and therefore the preparation of a Preliminary Site Investigation is not considered necessary and the previsions of Clause 7 of SEPP 55 are satisfied." 1. Both the Infrastructure SEPP (cl 45) and cl 6.3(1) HLEP require consideration and satisfaction that various essential services are available or that adequate arrangements have been made to make them available. The Applicant has provided a copy of a letter dated 14 July 2020 from Endeavour Energy (filed with the Court on 5 March 2021) which concludes as follows: "We have determined that your requested load can be supplied from our low voltage network in accordance with the Terms and Condition of the published Model Standing Offer for a LV Basic Connection Service." 1. Having considered the Endeavour Energy letter above together with the material provided to the Court, including the proposed Conditions of Consent and the advice of the Respondent Council, I am satisfied that adequate arrangements are available or can be made available for water supply, electricity supply, sewage disposal, stormwater drainage and road access. 2. I have considered and adopt the following reasons provided by the parties in relation to the State Environmental Plan (Sydney Harbour Catchment) 2005: "Pursuant to clause 3(2) [of the State Environmental Plan (Sydney Harbour Catchment) 2005], the Site is not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor it is shown as containing a heritage item. Clause 20(a) requires matters referred to in Part 3 Division 2 of the SREP be taken into consideration by the consent authority before granting development consent. The parties' position on Division 2 matters, by clause number, is as follows: The development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection. Subclauses (a)-(i) raise no matters that warrant refusal of the development. The development will have no impact upon public access to, and use of, the foreshore and waterway. The development has no implications for a working harbour. The development has no implications for use of the waterways or foreshore. The development has no impact upon the scenic quality of the waterways and foreshore. The development has no impact upon views. Clauses 27 (boat storage facilities), 27A (floating boat platforms) and 27B (mooring pens) have no relevance to the development." 1. There are a number of jurisdictional prerequisites contained in the HLEP which I will deal with as follows: 1. The Proposed Development is permissible on the basis of the subdivision component of the originally Proposed Development having been deleted. The Proposed Development is defined as multi dwelling housing and is permissible with consent within zone R3 Medium Density Residential and demolition of the existing buildings is permissible under cl 2.7 of the HLEP. 2. I am satisfied that pursuant to cl 2.3(2) of the HLEP, regard has been given to the R3 zone objectives and that the parties are satisfied that the Proposed Development reasonably satisfies the zone objectives. 3. Consent is sought for the proposed earthworks pursuant to cl 6.2 and accordingly consideration of the items listed in subcll (3)(a) to (h) has been summarised by the parties and I am satisfied that these provisions have been adequately considered as follows: 1. The development will not unreasonably disrupt or detrimentally effect existing drainage patterns or soil stability so as to justify refusal of the application; 2. The earthworks are related to and necessary for the future use / redevelopment of the land; 3. The quality of soil to be excavated of is de minimis importance and not of determinative weight; 4. Subject to adherence to conditions requiring safe means of excavation, the earthworks will have a negligible and satisfactory impact upon the existing and likely amenity of adjoining properties; 5. Conditions of consent may be imposed for the disposal of fill 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, conditions should be imposed requiring sediment and erosion control during site works. 1. I have read and considered the Flood Study and Impact Report dated 8 February 2021 filed by the Applicant on 5 March 2021. As required by 6.4(3) of the HLEP the Court must not grant development consent unless satisfied that requirements under cl 6.4(3) have been achieved. Having read the Flood Study and Impact Report I am satisfied that the requirements under cl 6.4(3) have been achieved and I adopt the reasons provided by the parties being that the amended development: 1. is compatible with the flood hazard of the land, and 2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and 3. incorporates appropriate measures to manage risk to life from flood, including but not limited to the design of the crest of the driveway at RL35.21 being greater than the minimum of RL 35 as shown in drawing A307, as well as the incorporation of the use of piers on the ground floor level as recommended in the Flood Study and Impact Report, and 4. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and 5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. Clause 6.7(2) of the HLEP relates to Stormwater management and provides that development consent must not be provided unless satisfied that the development: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. Having considered the amended Landscape plan and the revised calculations contained drawing A3-20 filed by the Applicant I am satisfied as follows: 1. the development conforms to expectations for water permeable surfaces for the R3 zone, and 2. it is not practicable to have or condition on-site stormwater retention for use as an alternative supply to mains water, and 3. adverse impacts of stormwater runoff on adjoining properties, to the extent they arise, can be minimised and mitigated by conditions. 1. Finally, cl 6.8(3) of the HLEP deals with salinity and requires that before determining a development application for development on land to which this clause applies, the consent authority must consider a number of listed matters and cl 6.8(4) provides that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of the matters listed in this subclause. I have formed the requisite state of satisfaction and adopt the following reasons provided by the parties: 1. the development is not likely to have any impact on salinity processes on the land; 2. salinity is not likely to have an impact on the development in any meaningful way; and 3. conditions of consent, may be imposed to avoid, minimise or mitigate salinity related impacts. In this regard I note that consent conditions 17, 18, 47 and 92 address salinity and I am satisfied that these are required and appropriate. 1. The amended plans have resolved the relevant concerns raised by objectors when the original Proposed Development was advertised from the January to February 2018. I note that the concerns raised were contained in 4 submissions received by the Respondent Council in 2018 and these concerns include overdevelopment, parking impacts, visual privacy impacts, impacts on drainage and sewerage systems, the two storey built form at the rear of the site being out of character with locality, overshadowing, damage to neighbouring properties from excavation, waste collection, traffic generation and impacts on the adjoining child care centre during construction. I accept that in the circumstance where the Holroyd Development Control Plan 2013 does not include specific provisions going to the re-notification of amended plans, the Council's practice is to not re-notify plans if the plans have a reduced environmental impact. The parties agree, and I find that the amended plans have a reduced environmental impact. 2. For these reasons provided above, 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. 3. 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. 4. The Court orders: 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 1. Architectural plans Sheet No A3-01 Revision J Cover Page CK Design + Interiors 8 February 2021 Sheet No A3-03 Revision F Basix Commitments CK Design + Interiors 20 April 2020 Sheet No A3-05 Revision F Site Analysis 20 April 2020 Sheet No A3-06 Revision J Site & Demolition Plan 8 February 2021 Sheet No A3-07 Revision J Basement Floor Plan 8 February 2021 Sheet No A3-08 Revision J Ground Floor Plan 8 February 2021 Sheet No A3-09 Revision J First Floor Plan 8 February 2021 Sheet No A3-10 Revision J Roof Plan 8 February 2021 Sheet No A3-11 Revision H Elevations 20 January 2021 Sheet No A3-12 Revision H Elevations 20 January 2021 Sheet No A3-13 Revision H Section 20 January 2021 Sheet No A3-14 Shadow Diagrams - Winter 8 February 2021 Revision J Sheet No A3-15 Revision J Shadow Diagrams - Winter 8 February 2021 Sheet No A3-16 Revision J Shadow Diagrams - Summer 8 February 2021 Sheet No A3-17 Revision J Shadow Diagrams - Equinox 8 February 2021 Sheet No A3-18 Revision J Solar & Cross Flow Analysis – June 22nd 8 February 2021 Sheet No A3-19 Revision F Schedule of Finishes 20 April 2020 Sheet No A3-20 Revision J Calculation Sheet 8 February 2021 Sheet No A3-21 Revision F 3D Perspectives 20 April 2020 Sheet No A3-22 Revision F Adaptable Layout 20 April 2020 Sheet No A3-23 Revision J Fence Detail 8 February 2021 Sheet No A3-24 Revision H Elevational Shadows 20 January 2021 Sheet No A3-25 Revision J Courtyard Shadows 8 February 2021 Sheet No A3-26 Revision J Courtyard Shadows 8 February 2021 Sheet No A3-27 Revision J Courtyard Shadows 8 February 2021 Sheet No A3-28 Revision H Sun Eye View Analysis 20 January 2021 Sheet No A3-29 Revision H Sun Eye View Analysis 20 January 2021 Sheet No A3-30 Attic Calculation Details October 2017 2. Landscape Plans Sheet L01 Revision D Proposed Landscape Plan Online Landscaping 9 February 2021 3. Engineering Plans Drawing No C1 Revision H Cover Sheet & Notes Nastasi & Associates Consulting Civil & Structural Engineers 9 February 2021 Drawing No C2 Revision H Basement Drainage Plan 9 February 2021 Drawing No C2-1 Revision H Basement Ramp Plan 9 February 2021 Drawing No C2-2 Revision H Basement Ramp Sections 9 February 2021 Drawing No C3 Revision H Drainage Plan 9 February 2021 Drawing No C3-1 Revision H 100 year Flood Zone – Post Development and Proposed Spot Levels 9 February 2021 Drawing No C3-2 Revision H Proposed Pipe Longitudinal Section 9 February 2021 Drawing No C4 Revision H OSD Catchment Plan 9 February 2021 Drawing No C5 Revision H Stormwater Details 9 February 2021 Drawing No C6 Revision H OSD Plan & Details 9 February 2021 Drawing No C7 Revision H Stormwater Details 9 February 2021 Drawing No C8 Revision H Sediment Control Plan 9 February 2021