Land and Environment Court New South Wales Medium Neutral Citation: Holman v Northern Beaches Council [2021] NSWLEC 1760 Hearing dates: Conciliation conference held on 6 December 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA 2021/1306 for a secondary dwelling at 13 Bungendore Street, Ingleside, is approved, subject to the conditions that are set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – secondary dwelling – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Pittwater Local Environmental Plan 2014 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Pittwater 21 Development Control Plan Category: Principal judgment Parties: John Holman (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Holman (Self-represented) (Applicant) C Rose (Solicitor)(Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/276662 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 2021/1306 by the Northern Beaches Council (hereafter the Council), which as amended, seeks the construction of a secondary dwelling on Lot 166 DP 752046, also known as 13 Bungendore Street, Ingleside (hereafter the site). Background 1. The DA was submitted to Council on 4 August 2021 and was internally assessed, although is not yet determined. 2. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), with an onsite view, by agreement of the parties. The conciliation was then held by MS Teams. 4. On 3 December 2021, the Court agreed, without opposition from the respondent, for the applicant to amend the plans and documents that support the amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 5. Based on the amended DA 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 of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2021/1306, with conditions. 6. Pursuant to s 34(3) of the Court 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 ss 4.14 and 4.15, to grant consent to DA 2021/1306, subject to conditions in Annexure 'A'. Jurisdictional prerequisites 1. Section 4.14 of the EPA Act establishes a requirement for consultation and consideration of relevant specifications relating to development on bushfire prone land. The amended DA is supported by a Bushfire Hazard Assessment Report. The parties agree that proposed siting and dwelling design have appropriately considered the context of the site to mitigate the risk from bushfire. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following have been considered: 1. Pittwater Local Environmental Plan 2014 (PLEP) The planning evidence is that the amended proposal is consistent with the aims and objectives of PLEP, and the objectives of the RU2 Rural Landscape zone, within which the development is located. The proposed secondary dwelling is permissible with consent in this zone, and has been sized, sited and designed to comply with the relevant development standards. 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) The site is not listed on Council's land contamination register and the amended proposal is otherwise consistent with SEPP 55, specifically cl 7(1). The site has consistently been used for residential purposes. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA. 1. Pittwater 21 Development Control Plan (P21 DCP) The relevant requirements of the P21 DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the P21 DCP, and no submissions were received. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 2021/1306 should be granted, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act. 4. 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. 5. The Court notes that the amended DA agreed by the Court, to be substituted in the proceedings on 3 December 2021, has been uploaded to the NSW Planning Portal. 6. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. DA 2021/1306 for a secondary dwelling at 13 Bungendore Street, Ingleside, is approved, subject to the conditions that are set out in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (239488, 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: 10 December 2021