Land and Environment Court New South Wales Medium Neutral Citation: Heyworth v Northern Beaches Council [2024] NSWLEC 1081 Hearing dates: Conciliation conference on 1 February 2024 Date of orders: 28 February 2024 Decision date: 28 February 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) 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 agreed sum of $1,000 within 28 days of these orders. (2) The appeal is upheld. (3) Development Application DA-2023/0607 for Torrens Title subdivision of two lots into three, demolition of existing structures and construction of a new dwelling on each resultant lot at 173-175 Whale Beach Road, Whale Beach, is determined by the grant of consent subject to conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision and construction of 3 dwellings –agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Pittwater Local Environmental Plan 2014, cll 4.1, 4.3, 4.6, 7.1, 7.2, 7.5, 7.6, 7.7, 7.8 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6 Category: Principal judgment Parties: Peter Heyworth (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) M Domingo (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Northern Beaches Council (Respondent) File Number(s): 2023/219825 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as the result of the deemed refusal, by Northern Beaches Council, of development application DA2023/0607 which seeks approval for: the subdivision of land involving two lots into three Torrens Title lots; the construction of three new residential dwellings with garages and a swimming pool, landscaping works and ancillary site works at 173-175 Whale Beach Road, Whale Beach, Lots 21 and 22 DP 10782. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. 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 1 February 2024. I presided over the conciliation conference, after which the parties reached agreement as to the acceptable terms of a decision in the proceedings. 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 that decision is one 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, however, 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 and explained how they have been satisfied. From this I note the following points. 5. In the course of the conciliation, the development application has been amended in response to the contentions raised by the Respondent. Principally, these amendments result in: 1. Removal of the northern access stairs from the street frontage of dwellings A-C; 2. A reduction in the overall height of dwellings B and C through alterations to the internal stairways of levels 2 and 3; 3. A deduction of the bulk of the second and third floor; and 4. Refinement of the form of the garage as viewed from the street. 1. The development application has been made with the written consent of the owner of the subject site. 2. The development application was appropriately notified from 29 May to 16 June 2023, during which time 8 submissions were received. The parties submit, and I accept, that the relevant matters raised in these submissions have been adequately taken into consideration. 3. Pursuant to the Pittwater Local Environmental Plan 2014 (PLEP), the subject site is zoned C4 Environmental Living, within which development for the purpose of dwelling houses is permitted with consent. The proposed development is consistent with the objectives of this zone. 4. Pursuant to PLEP cl 4.1, the site is identified as having a minimum lot size of 700m2. All three proposed lots are greater than 700m2. 5. PLEP cl 4.3 establishes a maximum building height control of 8.5m, however, subcl 4.3(2D) provides: "(2D) … development on land that has a maximum building height of 8.5 metres shown for that land on the Height of Buildings Map may exceed a height of 8.5 metres, but not be more than 10.0 metres if— (a) the consent authority is satisfied that the portion of the building above the maximum height shown for that land on the Height of Buildings Map is minor, and (b) the objectives of this clause are achieved, and (c) the building footprint is situated on a slope that is in excess of 16.7 degrees (that is, 30%), and (d) the buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs that allow the building to step down the slope." 1. The parties submit and I accept that the proposed development meets each of the matters in subcl 4.3(2D) and accordingly, the 10m height control applies to the site. 2. The proposed dwellings reach the following heights: 1. Dwelling A: 10.39m 2. Dwelling B: 10.15m 3. Dwelling C: 11.16m 1. As all dwellings breach the 10m height control, cl 4.6(3) of the PLEP requires a written request to justify the contravention of the height of building development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the Applicant has submitted a written request prepared by Northern Beaches Planning dated January 2024 (the written request). Pursuant to PLEP cl 4.6, I am satisfied that: 1. The written request demonstrates that compliance with the height of buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C4 Environmental Living Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties. 2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the Height of Buildings standard: 1. is the result of distortions to the natural ground plane due to historical excavation; 2. occurs at the garage and entrance ways, and results from compliance with the Council's prescribed driveway profiles; and 3. occurs as a redistribution of building bulk to the roof area, which results in a separation between dwellings and maximises view corridors from the road to the coastline. The contravention is therefore justified by the improved impact on the amenity the proposed dwellings, the meeting of Council's driveaway access requirements, the lack of adverse impact on neighbouring residents, and by being minor in nature. 1. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. The site is not mapped as having a maximum FSR control. Further, it does not contain any heritage items and is not within a heritage conservation area. 2. Pursuant to PLEP cl 7.1, the site is mapped as containing Class 5 Acid Sulfate Soils. However, the parties submit, and I accept that the nearest land that is identified as Class 1-4 is over 300m away from the subject site, and no excavation is proposed below 5m Australian Height Datum. Accordingly, an Acid Sulfate Soils Management Plan is not required. 3. Earthworks are proposed in this application, and in support of this, a Geotechnical Investigation Report prepared by White Geotechnical Group, and a Waste Management Plan prepared by the applicant as part of the Class 1 application, have been filed. The parties submit and I accept that the matters identified in PLEP cl 7.2(3) have been duly considered and adequately addressed in the application that is now before the Court and that therefore the requirements of PLEP cl 7.2 are met. 4. The subject site fronts the ocean coastline and is identified as being within the "Bluff/Cliff instability" area on the Coastal Risk Planning Map. Based on the parties' submissions and the information contained in the Coastal Engineering Advice prepared by Horton Coastal Engineering (the Coastal Engineering Report), I am satisfied that the requirements listed in PLEP cl 7.5 are met with the proposed development. 5. Pursuant to PLEP cl 7.6, the site is mapped as being within a "Biodiversity" area. The typology and species of existing vegetation is assessed in the Arboricultural Impact Assessment Report by Urban Arbor dated 1 May 2023, and the parties submit that the proposed vegetation removal and replacement planting as shown on the landscape plans by Fiona Cole Design dated 1 May 2023 is consistent with the biodiversity planning objectives and that the matters identified in subcl 7.6(3) have been adequately considered. From this, I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact as per subcl 7.6(4)(a). 6. PLEP cl 7.7 aims to ensure that development on land susceptible to geotechnical hazards matches the underlying geotechnical conditions of the land, is restricted on unsuitable land, and does not endanger life or property. The parties submit that the matters listed in subcl 7.7(3) have been considered in the assessment of this development application. Based on their submission and the information contained in the stormwater plans by Torinex Consulting Engineers dated 24 June 2024, the Coastal Engineering Report and Geotechnical Report by White Geotechnical Group, dated 2 February 2024, I am satisfied that the requirements of PLEP subcl 7.7(4) are met. 7. The site is traversed by the foreshore building line which, pursuant to PLEP cl 7.8, limits development within the foreshore area. Based on the parties' submissions and the amended architectural plans I am satisfied that all works are outside of the restricted foreshore area, with the exception of the swimming pool, waterway access stairs and walking trails which, pursuant to subcl 7.8(2)(b), are permitted within this area. 8. The site is mapped as "Coastal environment Area" and "Coastal Use Area" under the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards). Based on the parties' submission and the Coastal Engineering Report, I accept that the proposed development is not likely to cause an adverse impact on the matters identified in ss 2.10 and 2.11 of the SEPP Resilience and Hazards. Further, pursuant to ss 2.12 and 2.13, based on the parties' submissions, the Coastal Engineering Report and the Geotechnical Report, I am satisfied that no geotechnical hazards will be created by the proposed development, and also that no certified coastal management program applies to the subject site. 9. Section 4.6 of SEPP Resilience and Hazards requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties' submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose. 10. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the proposed development as it seeks the removal of 10 trees on the site. From the parties' submission and the Arboricultural Impact Assessment Report, I accept that the proposed development will, with the application of the relevant conditions of consent, be consistent with the requirements of Ch 2 of this SEPP. 11. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004. 12. For these reasons, 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. 13. As the parties' decision is one 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. 14. The Court notes: 1. Northern Beaches Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2023/0607 in accordance with the documents listed below (Amended Application): No. Document Date 1. Schedule of Amendments prepared by Bureau SRH Architecture 31 January 2024 2. Amended Architectural Plans prepared by Bureau SRH Architecture 7 February 2024 3. Amended Landscape Plan prepared by Fiona Cole Design February 2024 4. Amended Stormwater Plans prepared by Torinex Consulting 7 February 2024 5. Updated Clause 4.6 (Building Height) Request prepared by Northern Beaches January 2024 6. Updated Geotechnical Report prepared by White Geotechnical Group 2 February 2024 7. Updated Coastal Engineering Report prepared by Horton Coastal Engineering 2 February 2024 8. Stormwater Conduit Survey and Supplementary Letter (171A Whale Beach Rd) prepared by Stuchbury James 6 February 2024 Updated BASIX Certificates prepared by Outsource Ideas 9. • Dwelling A (Certificate No. 1385800S_02) 5 February 2023 • Dwelling B (Certificate No. 1385802S_02) • Dwelling C (Certificate No. 1385804S_02) 1. The Amended Application was filed with the Court on 21 February 2024. 2. The Court notes the Respondent's reasons for agreement to the terms of the decision are set out in Annexure 'B'. 1. The Court orders: 1. 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 agreed sum of $1,000 within 28 days of these orders. 2. The appeal is upheld. 3. Development Application DA-2023/0607 for Torrens Title subdivision of two lots into three, demolition of existing structures and construction of a new dwelling on each resultant lot at 173-175 Whale Beach Road, Whale Beach, is determined by the grant of consent subject to conditions contained in Annexure 'A'. E Washington Acting Commissioner of the Court 219825.23 Annexure A 219825.23 Annexure B ********** 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: 28 February 2024