Land and Environment Court New South Wales Medium Neutral Citation: Chamma v Bayside Council [2024] NSWLEC 1117 Hearing dates: Conciliation conference held on 6 March 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA2022/418 seeking construction of a dwelling on Lot 17 Deposited Plan 12470, also known as 278 Bay Street, Brighton-Le-Sands is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – construction of a new dwelling – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.66, 4.67, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Roads Act 1993, s 138 Bayside Local Environmental Plan 2021, cl 2.3, 5.1A, 5.21, 6.1, 6.3 Environmental Planning and Assessment Regulation 2021, ss 23, 38, 162 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.118 Texts Cited: Rockdale Development Control Plan 2021 Category: Principal judgment Parties: Abed Alrahman Chamma (Applicant) Bayside Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Adam Dean Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/252507 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA2022/418 by Bayside Council (the Council), seeking construction of a dwelling on Lot 17 Deposited Plan 12470, also known as 278 Bay Street, Brighton-Le-Sands (hereafter the site). Background 1. Development Application DA2022/418 (the DA) was lodged with Council on 29 December 2022, with no submissions in objection received during the notification period. 2. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), without an onsite view at request of the parties, and held in person. 4. The Council agreed for the Applicant to amend the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 5. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the Council has undertaken an appropriate merit assessment. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA2022/418, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been specifically considered and are considered satisfied: 1. Bayside Local Environmental Plan 2021 (BLEP): 1. Pursuant to cl 2.3 of the BLEP, the proposed development is situated over land zoned SP2 Infrastructure. The proposed development is not permissible with or without consent in this zone, pursuant to cl 2.3. However, the DA relies on existing use rights, pursuant to ss 4.66 and 4.67 of EPA Act, and s 162 of the EPA Reg, relating to the historic use of the site as residential with a dwelling. The Applicant has demonstrated that the site was historically used for residential purpose and contained a dwelling, prior to the current zoning of the site. It also was demonstrated that the recent demolition of the dwelling on the site was in response to risks associated with structural integrity. The site has benefited from a recent consent (DA2021/404) issued by Council, that sought to improve the existing dwelling. The DA under appeal is consistent with the building form approved in the previous consent, although considers the now vacant site. It has been demonstrated that the use of the site has not been abandoned since the dwelling was demolished in 2022, pursuant to cl 5.1A. 2. The amended DA is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the BLEP. 3. Relevant to the contentions raised by Council, the site is located within an area mapped as being flood prone. The amended DA addresses the established flood planning level, of 3.9m AHD for habitable rooms and 3.15m AHD for non-habitable rooms. The amended design of the dwelling has considered these levels. The requirements of cl 5.21 of the BLEP are assessed and considered satisfied. 4. The site is mapped as being affected by Classes 3 and 4 Acid Sulphate Soils, pursuant to cl 6.1 of the BLEP. The proposed development does not seek to excavate below 1 m, which is addressed by condition of consent. 5. Pursuant to cl 6.3 of the BLEP, the experts agree that the amended DA has considered and sufficiently demonstrates stormwater management that does not result in water related impacts. 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport): 1. The site is reserved for the purpose of a classified road, pursuant to s 2.118 of the SEPP Transport. Pursuant to s 2.118(1)(b), proposed investment on the site requires concurrence of Transport for NSW (TfNSW). Pursuant to s 2.118 of the SEPP Transport and s 138(2) of the Roads Act 1993, TfNSW provided concurrence for the proposed (amended) development on 5 March 2024, with their general terms of approval described in the conditions of consent. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX): 1. Pursuant to the SEPP BASIX, the proposed development is a 'BASIX affected building'. The amended DA relies on a BASIX Certificate (1734286S) issued on 1 February 2024, prepared consistent with the requirements of the SEPP BASIX and EPA Reg. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed. 1. Rockdale Development Control Plan 2021 (RDCP): 1. The relevant requirements of the RDCP are generally complied with based on the amended plans, supporting documents to the amended DA and the conditions of consent. 2. The original application was publicly notified in accordance with the RDCP. No submissions were received during the notification period. 1. Pursuant to s 23 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site. Grant of consent 1. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert reports relating to planning and stormwater, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to the orders sought and that Development Application DA2022/418, as amended, should be determined by the grant of consent. 3. As the parties' agreement 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. 4. The Court notes that: 1. The Bayside Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA2022/418, as follows: Plan name Drawing Number Prepared by Dated Amended Architectural Plans – Revision E Cover Page 0.0 Construct Design & Building Group Feb 24 Title Page 0.1 Construct Design & Building Group Feb 24 Specification Page 0.2 Construct Design & Building Group Feb 24 Site Plan 01.0 Construct Design & Building Group Feb 24 Site Analysis 01.1 Construct Design & Building Group Feb 24 Fence Plan 01.2 Construct Design & Building Group Feb 24 Proposed Ground Floor Plan 02.1 Construct Design & Building Group Feb 24 Ground Floor Plan - Traffic 02.2 Construct Design & Building Group Feb 24 First Floor Plan 02.3 Construct Design & Building Group Feb 24 North East/North West Elevation 03.0 Construct Design & Building Group Feb 24 South East/South West Elevation 03.1 Construct Design & Building Group Feb 24 Sections 03.2 Construct Design & Building Group Feb 24 Shadow Diagrams-June 04.0 Construct Design & Building Group Feb 24 Shadow Diagrams-March 04.1 Construct Design & Building Group Feb 24 Shadow Diagrams-Sept 04.2 Construct Design & Building Group Feb 24 Concept Landscape Plan 05.0 Construct Design & Building Group Feb 24 Neighbour Notification NN Construct Design & Building Group Feb 24 Amended Survey Plans Survey Plan 022-00 MGA Surveyors 06.12.2023 Amended Driveway Plans – Revision R1 Structural Notes DR-00 Technical Projects Consultant 04.03.2024 Vehicle Crossing Layout DR-01 Technical Projects Consultant 04.03.2024 Vehicle Crossing Sections DR-02 Technical Projects Consultant 04.03.2024 Amended Stormwater Plans – Revision R2 Stormwater Notes Plan SW-00 Technical Projects Consultant 01.03.2024 Stormwater Drainage Plan SW-01 Technical Projects Consultant 01.03.2024 First Floor Stormwater Drainage Plan SW-02 Technical Projects Consultant 01.03.2024 Typical Stormwater Details SW-03 Technical Projects Consultant 01.03.2024 Stormwater Catchment Plan SW-04 Technical Projects Consultant 01.03.2024 Typical Stormwater Details SW-05 Technical Projects Consultant 01.03.2024 Supporting Documentation Geotechnical Assessment AscentGeo Geotechnical Consulting 23.02.2024 BASIX Certificate Number 1734286S Mohamed El Chami 01.02.2024 Owner's Consent Letter Selvator Andrews 1. The Applicant has filed the amendments to the DA on 6 March 2024. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA2022/418 seeking construction of a dwelling on Lot 17 Deposited Plan 12470, also known as 278 Bay Street, Brighton-Le-Sands is determined by the grant of consent, and subject to the conditions set out in Annexure A. ………………………… S Bish Commissioner of the Court 23.252507 Annexure A ********** 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 March 2024