Land and Environment Court New South Wales Medium Neutral Citation: Bardwell v Northern Beaches Council [2022] NSWLEC 1271 Hearing dates: Conciliation conference on 9 and 12 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The updated written request made pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014, seeking to vary the minimum lot size development standard in clause 4.1 of the Pittwater Local Environmental Plan 2014, dated 9 May 2022, prepared by Vaughan Milligan, is upheld. (2) The Appeal is upheld. (3) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15 (3) of the Environmental Planning and Assessment Act 1979 in the amount of $2000 within 28 days of the orders being made by the Court. (4) Development consent is granted to Development Application No. DA2021/0715 for demolition works and Torrens Title subdivision of one lot into two lots at Lot B DP419338, being 11B Hill Street, Warriewood, subject to the conditions of consent contained at Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – subdivision – minimum lot size – cl 4.6 written request to justify contravention of development standard – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7, 8.14, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Pittwater Local Environmental Plan 2014, cl 4.1, 4.6, 7.1 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Category: Principal judgment Parties: John Bardwell (First Applicant) Christopher Bardwell (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: A Sattler (Solicitor) (First and Second Applicants) J Simpson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Northern Beaches Council (Respondent) File Number(s): 2022/30423 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 refusal of Development Application DA2021/0715 seeking development consent for demolition of existing structures and Torrens title subdivision of one lot into two lots (the Proposed Development) at 11B Hill Street Warriewood legally described as Lot B in Deposited Plan 419338 (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 was held on 9 and 12 May 2022. I 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 and filed an Agreement pursuant to s 34 of the LEC Act on 13 May 2022. 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 the terms of cl 4.6 of the Pittwater Local Environmental Plan 2014 (PLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional submission, filed 13 May 2022, which I summarise below. 6. The development application was publicly exhibited in accordance with the EPA Act, the Environmental Planning and Assessment Regulation 2000 and the Northern Beaches Community Participation Plan. The Proposed Development application was notified for a period of 14 days from 14 June 2021 to 28 June 2021 and two (2) submissions by way of objection were received which raised several concerns that are broadly categorised by the parties as follows: 1. Potential overdevelopment of undersized lot; 2. Unsuitable vehicle and pedestrian access; 3. Stormwater management and disposal; 4. Building setbacks; and 5. Impacts of an existing Norfolk Island Pine tree on neighbouring properties. 1. There were no objectors onsite at the conciliation conference. 2. The landowners of the site on which the development is proposed provided consent to the development application when it was lodged by way of a declaration on the prescribed development application form on the NSW Planning Portal. 3. There are a number of jurisdictional provisions in the PLEP relevant to the Proposed Development including the contravention of a development standard and acid sulfate soils. 4. Firstly, cl 7.1 of the PLEP applies to the site which is mapped as "Class 5" on the Acid Sulphate Soils Map of the PLEP. However, the Site is not located within 500m of adjacent Class 1 to 4 land and is not below RL 5.0 AHD and as a result there is no need for an acid sulphate assessment or management plan. 5. Secondly, the Proposed Development seeks development consent for a resulting lot size following subdivision which is smaller than the development standard in cl 4.1 of the PLEP and the Applicant relies on a revised written request pursuant to cl 4.6 of the PLEP, prepared by Vaughan Milligan dated 9 May 2022, to justify the contravention of the development standard. Does the cl 4.6 written request justify the contravention of the minimum lot size development standard in cl 4.1 of the PLEP? 1. Clause 4.1(3) of the PLEP prescribes a minimum lot size resulting from the subdivision of land of 550m2, as shown on the Lot Size Map in relation to the land the subject of the proposed development. The proposed lot 1 is 512m2. 2. Clause 4.6 of the PLEP allows the Court, standing in the shoes of the consent authority, to grant consent to the development application, notwithstanding the contravention of cl 4.1(3) of the PLEP, subject to it being satisfied that the relevant preconditions in cl 4.6 have been met. 3. The parties agree that the cl 4.6 request satisfies the requirements of cl 4.6(3) of PLEP and demonstrates: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the development standard. 1. For the purposes of cl 4.6(4) of the PLEP, the parties submit that the Court would be satisfied that: 1. the cl 4.6 request has adequately addressed the matters required to be demonstrated by subcl (3), and 2. the development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 1. The Court can grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5) of the PLEP. In this case the development is a local development with a minor non-compliance and an adequately justified breach of the minimum lot size development standard. In the circumstances of this case, the contravention of cl 4.1(2) of the PLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard. 2. The Respondent agrees that the Applicant's cl 4.6 written request is well founded and is supportable. The parties agree that the proposed development meets the objectives of the C4 zone. 3. Having read the cl 4.6 written request prepared by Vaughan Milligan dated 9 May 2022, I conclude that I am satisfied that the Applicant's written request seeking to justify the contravention of the development standard in cl 4.1 of the PLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the PLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 4. The next relevant jurisdictional prerequisite is found in the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) and the parties make submissions which address cl 4.6 of the SEPP Resilience and Hazards. 5. SEPP Resilience and Hazards came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy 55 – Remediation of Land to the new instrument. 6. Clause 4.6 of the SEPP Resilience and Hazards requires a consent authority to consider the contamination and remediation of land when determining a development application, and importantly subcl 4.6(1) requires that a consent authority must not consent to the carrying out of any development on land unless: (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. Clause 4.6(2) further requires that: before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 1. The Site has been used for residential purposes for a significant period of time, with no prior different land use. The Site and the surrounding land is not currently zoned to allow for any uses listed in Table 1 of the contaminated land planning guidelines under cl 4.14 of the SEPP Resilience and Hazards. For these reasons, no further investigation of land contamination is warranted and this time. 2. Pursuant to the SEPP Resilience and Hazards, the Court can consent to the carrying out of development on the land. 3. 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. I adopt the reasons given by the parties as summarised above in this judgment. 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. Notations: 1. The Court notes that: 1. That 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 DA2021/0715 with the following amended plans and documents: 1. Plan showing passing bay by TTPA Traffic Engineers sheet 1 of 3 dated 5 May 2022 2. Amended Clause 4.6 variation request by Vaughan Milligan dated 9 May 2022 1. The Respondent has uploaded the documents set out in paragraph 2(i) above, onto the NSW Planning Portal on 11 May 2022 and 13 May 2022. The portal reference numbers are PEH-1108 and PEH-1118. 2. The Applicant filed the amended development application with the Court on 13 May 2022. Orders: 1. The Court orders that: 1. The updated written request made pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014, seeking to vary the minimum lot size development standard in clause 4.1 of the Pittwater Local Environmental Plan 2014, dated 9 May 2022, prepared by Vaughan Milligan, is upheld. 2. The Appeal is upheld. 3. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2000 within 28 days of the orders being made by the Court. 4. Development consent is granted to Development Application No. DA2021/0715 for demolition works and Torrens Title subdivision of one lot into two lots at Lot B DP419338, being 11B Hill Street, Warriewood, subject to the conditions of consent contained at Annexure 'A'. ………………………. E Espinosa Commissioner of the Court Annexure A (218482, pdf) Plans (267663, 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: 27 May 2022