Land and Environment Court New South Wales Medium Neutral Citation: Loi v City of Canada Bay Council [2023] NSWLEC 1045 Hearing dates: Conciliation conference on 5 December 2022, 6 December 2022 and 25 January 2023. Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Application number DA2022/0016, as amended, for alterations and first floor additions to existing dwelling on land identified as Lot 20 in Deposited Plan 663430 and known as 13 Collingwood Street, Drummoyne NSW 2047, be granted by way of consent subject to the conditions at Annexure A. Catchwords: MODIFICATION APPLICATION – single storey dwelling – first floor addition – streetscape – heritage – conciliation – agreement between parties - agreement between the parties – orders Legislation Cited: City of Canada Bay Local Environmental Plan 2013 cll 1.2, 2.3, 4.3, 4.4, 5.10, 6.1, 6.2, 6.13, Sch 5 Pts 1 and 2 Environmental Planning and Assessment Act 1979 ss 1.3, 4.12, 4.15, 4.16,4.55, 8.7, 8.11 Environmental Planning and Assessment Regulation 2000 cll 49, 55, 113 Land and Environment Court Act 1979 ss 17, 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Texts Cited: City of Canada Bay Community Participation Plan City of Canada Bay Development Control Plan 2017 Category: Principal judgment Parties: James Arthur Loi (First Applicant) My Hao Luong (Second Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicants) R McCulloch (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Pikes & Verekers Lawyers(Respondent) File Number(s): 2022/00241673 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the City of Canada Bay Council's (Council) deemed refusal of development application DA2022/0016 (DA) which is a modification application relating to alterations and first floor addition to the existing single storey dwelling house on Lot 20 in Deposited Plan 663430 known as 13 Collingwood Street, Drummoyne, NSW 2047 and with a site area of 649.79m2 (the Site). 1. The proceedings were filed pursuant to s 8.7(1) and 8.11(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The proceedings fall within Class 1 of the Court jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings are s 4.16 of the EPA Act and s 34(3) of the LEC Act. 1. The DA was lodged on the NSW planning portal on 20 January 2022. 2. On 17 August 2022 as the DA remained undetermined, the Applicant filed the Class 1 Application with the Court, pursuant to s 8.7(1) and the deemed refusal provisions of s 11(1) of the EPA Act. 3. The Site is zoned R3 Medium Density Residential pursuant to the Canada Bay Local Environment Plan 2013 (CBLEP 2013). 4. The Site contains a free-standing single storey Californian bungalow in face brick construction with a terracotta tiled roof. The original front veranda has been enclosed. Driveway access is provided on the south-eastern side of the residence, and there is a double garage adjoined with a covered BBQ area to the rear of the Site. 5. The Site is located within the Drummoyne Park Estate Conservation Area (Conservation Area) pursuant to Pt 2 of Sch 5 of CBLEP 2013, which includes parts of Wrights Street, St George's Crescent, Lyons Road, Seymour Street, Collingwood Street and Napier Street. 6. Development in the Conservation Area is mixed with a range of periods, styles and scales of building including substantial late 19th century residences such as nos. 2, 8 and 45 Wrights Road, and 5-11 and 23 Collingwood Street. Whilst these are heritage items listed pursuant to Pt 1 of Sch 5 of CBLEP 2013, the remaining smaller scale early 20th century houses are also considered important features of the Conservation Area and generally represent rare examples of their period and style in the Drummoyne context and contribute to the understanding in the area. 7. Individual heritage items in the Conservation Area within the immediate visual vicinity of the Site include nos. 5, 7, 9 and 11 Collingwood Street to the south-east. The immediate adjoining dwelling to the north-west at 15 Collingwood Street is classified as an infill development in the Conservation Area map in Canada Bay Development Control Plan 2013 (CBDCP 2017). 8. The existing residence on the Site is identified as a contributory item in the Conservation Area in cl C2.1 CBDCP 2017. 9. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 5 and 6 December 2022 and 25 January 2023. I presided over the conciliation conference. 10. 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 noting that the Council, as the relevant consent authority, had agreed to the Applicant amending the plans in the DA, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), as to rely upon the materials set out below, (Amended DA), and to grant consent to the DA pursuant to s 4.16(1) of the EPA Act subject to conditions in Annexure A: Document Description Prepared By Date Architectural Plans: (a) Drawing No. DA01, issue D – Existing Site Plan/Site Analysis Plan (b) Drawing No. DA02, issue D – Ground Floor Plan (c) Drawing No. DA03, issue D – First Floor Plan (d) Drawing No. DA04, issue D – Roof Plan (e) Drawing No. DA05 issue D – Northeast Elevation Amy Luong Architect 2 January 2023 (f) Drawing No. DA06 issue D – Southwest Elevation (g) Drawing No. DA07 issue D – Northwest Elevation (h) Drawing No. DA08 issue D – Southeast Elevation (i) Drawing No. DA09 issue D – Section AA (j) Drawing No. DA10 issue D – Section BB (k) Drawing No. DA20, issue C – Schedule of Finishes BASIX Certificate No. A426904_03 Amy Luong Architect 2 January 2023 1. 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. 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 set out below, and explained how the jurisdictional prerequisites have been satisfied: 1. The DA was made with the consent in writing of the registered proprietors of the Site (Class 1 Application, tab 4) in accordance with s 4.12(1) of the EPA Act and cl 49(1)(a) and (b) of the EPA Regulation. 2. The DA appeal was filed in Court as a deemed refusal by the consent authority in accordance with cl 113(a) of the EPA Regulation. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation, the Proposal is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by a BASIX certificate and the Applicants have provided the Amended BASIX Certificate number A426904_03 dated 2 January 2023 as part of the Amended DA. The Respondent considers the Amended DA satisfactory in this regard. 4. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. As the Site was historically used for residential purposes with no known history of potentially contaminating uses and events, the Respondent is satisfied that the historical use of the Site for residential purposes dictates that: 1. No further investigation is warranted; and 2. The Site is deemed suitable to accommodate the Proposal. 1. Pursuant to Ch 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the Site is located within the Sydney Harbour Catchment. The Site is not located in the 'Sydney Harbour Foreshores and Waterways Area' pursuant to the Sydney Harbour Foreshores and Waterways Area Map Sheet FWA_001. The Site is not located in a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the Biodiversity SEPP. The parties have considered the Amended DA in respect of Ch 10 of the Biodiversity SEPP and consider it satisfactory in this regard. 2. In relation to CBLEP 2013 the parties agree: 1. That the Amended DA is consistent with the aims of cl 1.2 of CBLEP 2013. 2. That the Amended DA is consistent with the zone objectives pursuant to cl 2.3 and the Land Use Table (objectives for the 'Zone R3 Medium Density Residential') of the CBLEP 2013. 3. The Amended DA is characterised as alterations and additions to an existing 'dwelling house' under the CBLEP 2013, and is development permitted with consent in the 'R3 Medium Density Residential Zone' pursuant to the Land Use Table of the CBLEP 2013. 4. Pursuant to cl 4.3(2) and the Height of Buildings Map of CBLEP 2013, the maximum height of a building on the Site must not exceed 8.5 metres (Height Development Standard). At its highest point the Proposal under the Amended DA will be 7.11 metres, measured from a ground level (existing) of RL28.78 to the ridge of the rear additions at RL35.89. The parties agree that the Amended DA complies with the Height Development Standard. 5. Pursuant to cl 4.4(2) and the Floor Space Ratio Map of the CBLEP 2013, the maximum floor space ratio (FSR) applicable to the Site is 0.5:1 (FSR Development Standard). The Amended DA will have a total gross floor area of approximately 286.25sqm, providing a FSR of 0.44:1. The parties agree that the Amended DA complies with the FSR Development Standard. 6. Pursuant to Sch 5 Pt 1 and the Heritage Map of the CBLEP 2013, the Site is not an item of environmental heritage but is located within a heritage conservation area in accordance with Sch 5 Pt 2. The consent authority is required by cl 5.10(4) of the CBLEP 2013 to consider the 'effect of the proposed development on the heritage significance of the item or area concerned' before granting development consent. The parties agree, and the Court can be satisfied, that the heritage impacts of the Amended DA and the heritage contentions of the Respondent's SOFAC have been addressed by the Amended DA and are now considered acceptable. 7. Pursuant to cl 6.1 and the Acid Sulphate Soils Map of the CBLEP 2013, the Site is classified as Class 5 acid sulphate soils land. The Site is located within 500 metres of Class 2 land but the Amended DA does not involve works below 5 metres Australian Height Datum or lower the water table below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Therefore, the Amended DA does not require consent under cl 6.1 of the CBLEP 2013 and an acid sulphate soils management plan is not required. 8. The Amended DA includes minor works that are defined as earthworks under CBLEP 2013. Pursuant to cl 6.2(3) of CBLEP 2013, prior to the grant of any development consent for earthworks the consent authority must consider the earthworks matters identified under (a) to (h) of the clause. The Respondent has considered those matters in the assessment of the Amended DA and says the Court can be satisfied that the Amended DA is acceptable, and that consent may be granted subject to appropriate conditions. 9. The Site is within the ANEF contour as shown on the Noise Exposure Forecast Contour Map and as such cl 6.13 of CBLEP 2013 requires that development consent must not be granted unless the consent authority is satisfied that the development will meet Indoor Design Sound Levels for Determination of Aircraft Noise Reduction. Having considered such matters, the Respondent is satisfied that the Amended Proposal is acceptable subject to the appropriate conditions. 1. The Council notified the DA from 21 January 2022 to 11 February 2022. No submissions in objection were received by the Council in response to the Notification. The Council is also satisfied that the Amended DA does not require further notification under the City of Canada Bay Community Participation Plan. 2. The parties are satisfied that the Contentions raised in Council's SOFAC have been resolved. Therefore the Council is satisfied that the Amended DA can be granted subject to conditions in Annexure A. As a result the Court is not required to make any assessment of the merits of the Amended DA against the merit matters which arise under s 4.15 of the EPA Act. 1. 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 for the reasons set out above, and those set out below: 1. The Amended DA meets the following objects of the s 1.3 of the EPA Act: …… (c) to promote the orderly and economic use and development of land, …… (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants. …… As set out in the reasons in sub-par (3) below. 1. The Amended DA complies with the following aims of CBLEP 2013 cl 1.2 (2): …… (c) to achieve high quality urban form by ensuring that new development reflects the existing or desired future character of particular localities, …… (f) to conserve the environmental heritage of Canada Bay, (g) to promote ecologically sustainable development …… 1. The Amended DA meets the objectives of Zone R3 Medium Density Residential, when taken together with the contributory nature of the Site within the Conservation Zone: "To provide the housing needs of the community……; To provide a variety of housing types ….. ……" 1. The Amended DA meets the aims of CBDCP 2017 as set out in cl A1.6: "1 Encourage development that responds to its context and is compatible with the existing built environment and public domain. 2. Recognise and reinforce the distinctive characteristics of Canada Bay's neighbourhood and centres. 3. Build upon the detailed objectives and controls under Canada Bay LEP 2013. 4 Protect and enhance the public domain. 5. Encourage design that maintains and enhances the character and heritage significance of heritage items and heritage conservation areas; and 6 Encourage ecologically sustainable development and reduce the impacts of development on the environment." 1. Clause C4 of CBDCP 2017 deals with Development in Heritage Conservation Areas. The Amended DA meets the Objectives as set out in cl C4.1: "01 To maintain and enhance the existing character of the streetscape of a conservation area. 02 To ensure that new development respects the established patterns in the streetscape of a conservation area, including setbacks, siting, landscaped settings, carparking and fencing. 03 To ensure that the character of the conservation area is retained and enhanced. 04 To ensure that the contributory buildings, places and components of conservation areas are to be retained and not demolished. ……" 1. The Amended DA complies as a contributory building in the Conservation Area as the ridge line to the roof has been retained as set out in cl CA.6 under the par "Form": "Most of the housing that contributes to the heritage character of this Conservation Areas (sic) has prominent roof forms with terracotta being the dominant material followed by slate shingles. …..." 1. As set out above, the existing residence is a contributory building in the Conservation Area. To maintain its importance as a contributory building and setting the following amendments were made to the DA which became the Amended DA: 1. The size of the cut-out in the roof was reduced in size (both in height and in area) to be 2.5m wide, and sited 800mm from the roof line; whilst the front was set back to connect to the original ridge, and the side gables were retained.(Drawing Roof Plan No. DA04 Issue D) 2. The ensuite to the main bedroom on level 1 was moved towards the rear of the building so that an original corner in the building could be retained.(Drawing First Floor Plan DA03 Issue D) 3. The stairs on the southern side were moved internally to the NW Corner. 4. The light well as proposed in the DA was retained in the Amended DA. The light well gives natural light to the family dining area on the ground floor. (Drawing Section AA Plan DA09 Issue D). 1. The Amended DA only included features to ensure that it retained its benefit as a contributory building in the Conservation Area. The amendments to the DA were of a minor nature, and Council has consented to those amendments. The Amended DA is substantially the same as the DA as defined in s 4.55(b) of the EPA Act. 2. The Amended DA is capable of being granted consent pursuant to s 4.16(1)(a) of the EPA Act and s 34 (3)(a) and (b) of the LEC Act. 1. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes that the Council as the relevant consent authority, has agreed to the Applicant amending the Application Class 1, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, so as to rely on the following amended materials. Document Description Prepared By Date Architectural Plans: (l) Drawing No. DA01, issue D – Existing Site Plan/Site Analysis Plan (m) Drawing No. DA02, issue D – Ground Floor Plan (n) Drawing No. DA03, issue D – First Floor Plan (o) Drawing No. DA04, issue D – Roof Plan (p) Drawing No. DA05 issue D – Northeast Elevation Amy Luong Architect 2 January 2023 (q) Drawing No. DA06 issue D – Southwest Elevation (r) Drawing No. DA07 issue D – Northwest Elevation (s) Drawing No. DA08 issue D – Southeast Elevation (t) Drawing No. DA09 issue D – Section AA (u) Drawing No. DA10 issue D – Section BB (v) Drawing No. DA20, issue C – Schedule of Finishes BASIX Certificate No. A426904_03 Amy Luong Architect 2 January 2023 1. The Court orders that: 1. The appeal is upheld. 2. Development Application number DA2022/0016, as amended, for alterations and first floor additions to existing dwelling on land identified as Lot 20 in Deposited Plan 663430 and known as 13 Collingwood Street, Drummoyne NSW 2047, be granted by way of consent subject to the conditions at Annexure A. ………………………… M Peatman Acting Commissioner of the Court Annexure A (317462, 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 February 2023