Land and Environment Court New South Wales Medium Neutral Citation: Backhouse v Northern Beaches Council [2022] NSWLEC 1070 Hearing dates: Conciliation conference on 7 February 2022 Date of orders: 14 February 2022 Decision date: 14 February 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA2021/0905 for the demolition of existing structures, tree removal and excavation, and construction of a three storey dwelling house with two (2) levels of basement with a swimming pool and associated landscaping at 53 Wheeler Parade, Dee Why (Lot A, DP 338618) is approved, subject to the conditions of consent in Annexure 'A'. (3) The Respondent is to register the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. (4) The Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA2021/0905 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.20 and 8.7 Environmental Planning and Assessment Regulation 2000, cll 2A, 55, 77, Pt 1 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Warringah Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 6.2 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021) NSW Department of Planning and Environment, Apartment Design Guide, 2015 Warringah Development Control Plan 2011 Category: Principal judgment Parties: Brent Backhouse (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/259508 Publication restriction: No Judgment 1. COMMISSIONER: Brent Backhouse (the Applicant) has appealed the deemed refusal (subsequently refused) by Northern Beaches Council (the Respondent) of Development Application number DA2021/0905, made with owner's consent, seeking consent for the demolition of existing structures, tree removal and excavation, and construction of a three (3) storey dwelling house with two (2) levels of basement with a swimming pool and associated landscaping (the Proposed Development) at 53 Wheeler Parade, Dee Why, also legally described as Lot A, DP 338618 (the Subject Site). 2. The Subject Site currently benefits from a right of carriageway across the driveway of 55 Wheeler Parade which runs adjacent to the southern boundary of the Subject Site and which currently allows for pedestrian access and vehicular access and parking to the rear Subject Site. 3. The Respondent had notified the Applicant's development application pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), between 2 and 16 July 2021 and twelve submissions were received by the Respondent from 9 persons in response to the notification. 4. The Applicant appealed the refusal of his development application under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined under s 4.16 of the EP&A Act. 5. On 7 February 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions. 6. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was undertaken as part of the conciliation conference and one objector submission was received in relation to the Proposed Development. 7. 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 consent to the Applicant's development application, subject to conditions. 8. Under s 34(3) of the Land and Environment Court Act 1979 (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. 9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), cl 7(1)(a) requires the consent authority to consider whether the land is contaminated. The Parties advise, and I am satisfied that consideration has been given as to whether the Site is contaminated, and that: 1. no change of use is proposed; 2. as the current and proposed long-term use of the Site is residential, the Subject Site is unlikely to be contaminated; and 3. the Subject Site is suitable for the purpose for which the development is proposed to be carried out in fulfilment of the provisions of cl 7 of SEPP55; 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX): 1. Clause 6 of SEPP BASIX requires that the Development Application be accompanied by a BASIX certificate; 2. an amended BASIX certificate (No. 805851S_04) and an amended NatHERS Certificate (No. 7014798) have been issued with respect to the Amended Application, both dated 4 February 2022; 1. in relation to the provisions of the Warringah Local Environmental Plan 2011 (WLEP): 1. under the provisions of cl 2.3, the Subject Site is zoned R2 Low Density Residential, and the Proposed Development is permissible on the Subject Site; 2. the Subject Site is subject to a maximum height of buildings control of 8.5m pursuant to cl 4.3 of WLEP 2011, and the Proposed Development, as amended, complies with this control; 3. the Subject Site is not subject to a floor space ratio (FSR) development standard pursuant to cl 4.4 of the WLEP; 4. the relevant matters pursuant to cl 6.2(3) of the WLEP in relation to proposed earthworks, have been considered, including by reference to the Geotechnical Investigation prepared by White Geotechnical Group dated 11 June 2021; 5. the Subject Site is identified as 'Area B – Flanking Slopes 5' to 25' on the Landslip Risk Map within WLEP and the relevant matters pursuant to cl 6.4(3) of the WLEP have been considered in relation sloping nature of the Subject Site and the design of Proposed Development, including by reference to the Slope Stability Risk Assessment prepared by White Geotechnical Group dated 11 June 2021. The Parties advise, and I am satisfied, that: 1. the Applicant's Development Application has been assessed for the risk associated with landslides in relation to both property and life; 2. the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and 3. the development will not impact on or affect the existing subsurface flow conditions; 1. the relevant provisions of the Warringah Development Control Plan 2011 (WDCP) have been taken into account in assessing the Proposed Development: 1. the Parties' town planning experts have agreed that the Applicant's plans, as amended, demonstrate a satisfactory built form outcome when assessed against the objectives and controls in WDCP; 2. including, in particular, in relation to the controls in: 1. Part Cl.D1 concerning Landscaped Open Space and Bushland Setting controls; 2. Part Cl.B7 concerning Front Boundary Setback controls; and 3. Part Cl.B3 concerning Side Boundary Envelope controls; and 1. either, the Proposed Development, as amended, achieves the controls contained in the WDCP; 2. or, where it does not achieve the controls within WDCP, it achieves the objectives of those controls such that it represents a reasonable alternative solution to the controls and, pursuant to the provisions of s 4.15(3A) of the EP&A Act, is considered acceptable. 1. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am further 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 to dispose of the proceedings in accordance with the Parties' decision. 4. 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. 5. The Court notes that: 1. on 1 February 2022 the Applicant filed a Notice of Motion (NoM) and supporting material seeking leave to amend its Development Application in this appeal, and the Court granted the Applicant's NoM; 2. on 2 February 2022 the Respondent agreed to the Applicant's proposed amendment to its Development Application pursuant to cl 55(1) of the EP&A Regulation; and 3. on 4 February 2022 the Applicant uploaded its amended Development Application on the NSW Planning Portal. Orders 1. The Court orders that: 1. the appeal is upheld; 2. Development Application No. DA2021/0905 for the demolition of existing structures, tree removal and excavation, and construction of a three storey dwelling house with two (2) levels of basement with a swimming pool and associated landscaping at 53 Wheeler Parade, Dee Why (Lot A, DP 338618) is approved, subject to the conditions of consent in Annexure 'A'; 3. the Respondent is to register the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders; 4. the Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA2021/0905 on its website in accordance with cl 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders. ……………………….. M Chilcott Commissioner of the Court Annexure A (287606, pdf) ********** Amendments 04 March 2022 - Pursuant to UCPR r 36.17, Order 4 made on 14 February 2022 is amended as follows: (1) In Order 4, the text "DA/2021/1011" is replaced with "DA2021/0905". 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: 04 March 2022