Land and Environment Court New South Wales Medium Neutral Citation: Thatcher v Northern Beaches Council [2022] NSWLEC 1196 Hearing dates: Conciliation conference on 25 March 2022 Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development Application No. DA2021/0953 for subdivision of Lot 2 DP18022 at 52 Abbott Road, North Curl Curl into two (2) lots is determined by the grant of consent subject to the conditions of consent in Annexure A. Catchwords: APPEAL – development application – demolition works – Torrens title subdivision – construction of new off-street car parking – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 State Environmental Planning Policy (Resilience and Hazards) 2021, cll 2.10, 2.11, 4.6 Warringah Local Environmental Plan 2011 cll 2.6, 4.1, 4.3, 5.21 Category: Principal judgment Parties: Leigh Thatcher (First Applicant) Wendy Thatcher (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicants) J Simpson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicants) Northern Beaches Council (Respondent) File Number(s): 2021/328295 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for works and the subdivision of land at 52 Abbott Road, North Curl Curl, which was refused by Northern Beaches Council on 2 December 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 was held on 25 March 2022. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 5 April 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended plans included a widening of a right of way over the adjacent property at 50 Abbott Road, an amendment to the plan of subdivision to include a positive covenant that applies if the existing dwelling on proposed Lot 1 is demolished, and updated engineering plans for stormwater and driveway swept paths. 4. The proposed development, as amended, is for the demolition of the existing carport and garage, the Torrens title subdivision of the lot containing a detached dual occupancy such that an existing dwelling remains on each subdivided lot, and the construction of off-street car parking on each new allotment. The subdivision is in a battle-axe configuration and relies on an increase in a right of way over neighbouring land for vehicular driveway access alongside the existing dwelling on proposed Lot 1 to access proposed Lot 2. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The applicants for development consent are the owners of the land to be subdivided, and owners' consent has been provided for the widening of the right of way on 50 Abbott Road, North Curl Curl. * Upon the registration of the plan of subdivision, the dwellings will meet the definition of dwelling houses, which is a use that is permissible with development consent in the R2 Low Density Residential zone in which the site is located, pursuant to the Warringah Local Environmental Plan 2011 (WLEP). The works are therefore permissible with development consent, and the subdivision of land is similarly permissible with development consent pursuant to cl 2.6 of the WLEP. * The subdivided lots meet the minimum lot size development standard in cl 4.1 of the WLEP, and the works to be carried out meet the height development standard in cl 4.3. * The development application was lodged prior to the commencement of cl 5.21 of the WLEP, which concerns flood planning, and the savings clause in cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 operates such that cl 5.21 of the WLEP does not apply to the development application. However, the prior clause that concerned flood planning, cl 6.3, has been repealed and there is no savings clause that preserves its operation for the purpose of assessing this development application. Nevertheless, based on the Statement of Environmental Effects dated June 2021 (SEE), I am satisfied that the development is compatible with the flood hazard of the land and will not adversely affect flood behaviour. As the site is above the flood planning level, it need not incorporate any additional measures to reduce risk to life from flood. * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP 2021). As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated. * The site is within the coastal environment area and the coastal use area, pursuant to the SEPP 2021. Based on the contents of the SEE and the extent of the proposed development, I have considered the matters in cll 2.10(1) and 2.11(1)(a), and, consistent with cll 2.10(2)(a) and 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in cll 2.10(1) and 2.11(1)(a). 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. Northern Beaches Council, as the relevant consent authority, has agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA2021/0953 with the plans, drawings and documents listed in Condition 1(a) of the Conditions of Consent provided as Annexure A. 2. The respondent has uploaded the Amended Plan of Subdivision onto the NSW Planning Portal on 1 April 2022, portal reference number PEH-1061. 3. The Applicant filed the amended development application with the Court on 1 April 2022. 1. The Court orders that: 1. The Appeal is upheld. 2. Development Application No. DA2021/0953 for subdivision of Lot 2 DP18022 at 52 Abbott Road, North Curl Curl into two (2) lots is determined by the grant of consent subject to the conditions of consent in Annexure A. ……………………… J Gray Commissioner of the Court ********** Annexure A.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: 14 April 2022