Land and Environment Court New South Wales Medium Neutral Citation: Halasagi v Canada Bay Council [2024] NSWLEC 1670 Hearing dates: Conciliation conference 1,2 October 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA/2023/0219 for the demolition of the existing dwelling and associated structures, and construction of a new dwelling with car parking and landscaping on land legally described as Lot C in Deposited Plan 379223 known as 131 Henley Marine Drive, Drummoyne NSW 2047 subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new residential dwelling – conciliation conference – amended plans – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Fisheries Management Act 1994 Land and Environment Court Act 1979, ss 34, 34AA Protection of the Environment Operation Act 1997 Water Management Act 2000 Canada Local Environmental Plan 2013, cll 2.10, 2.11, 4.3, 4.4, 6.2, 6.3, 6.13 Environmental Planning and Assessment Regulations 2021, ss 23, 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 4.6, 2.11, 2.12, 2.13 State Environmental Planning Policy (Transport and Infrastructure) 2007, cl 45 Texts Cited: Australian Standard Acoustics: Aircraft noise intrusion: Building siting and construction Canada Bay Development Control Plan Category: Principal judgment Parties: Vinay Halasagi (Applicant) City of Canada Bay (Respondent) Representation: Counsel: J Smith (Applicant) K Mortimer, solicitor (Respondent) Solicitors: D Tyrell, Tyrells Law (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2024/113898 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA 2023/0219. The development application seeks consent for the demolition of the existing dwelling and all associated structures, car space, removal of all trees and construction of a new part three and part two storey dwelling with car parking and landscaping. The works are proposed on land identified as Lot C in DP 379223 known as 131 Henley Marine Drive, Drummoyne. 2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the October 1, 2 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on October 2, 2024. 3. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that: 1. Owner's consent has been obtained for the development application as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 2. The development application was notified by the Respondent between 17 October and 7 November 2023. Four submissions were received in response to the notification. Further, a number of members of the public addressed the Court at the commencement of the proceedings on site. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. The proposed development is 'BASIX development' as defined by the EPA Regulation and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements. The BASIX Certificate satisfied the requirement in s 27 of the EPA Reg 2021 as it has been issued no earlier than 3 months before the date on which the development application was made. 4. Pursuant to Part 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) the site is located within the mapped Sydney Harbour Catchment, a regulated catchment. Sections 6.6-6.10 of SEPP BC contain matters which the consent authority must consider before the grant of consent. In undertaking these considerations, I am assisted by a letter from Resolute Stormwater dated 30 September 2024 which confirms that the concept stormwater drainage design meets the requirements of SEPP BC. I am satisfied that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water. 5. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied. 6. Pursuant to Chapter 2 of SEPP RH the site is identified as land within a coastal zone as it is identified as land within the 'coastal environmental area' and 'coastal use area'. As such the following provisions apply: 1. For development on land within the coastal environment area, s 2.10 of the SEPP RH provides that development consent must not be granted unless the consent authority is satisfied of the matters specified in s 2.10(2). 2. For development on land within the coastal use area, s 2.11 of the SEPP RH provides that development consent must not be granted unless the consent authority is satisfied of the matters specified in s 2.11(1)(b). 3. As the development is in the coastal zone, ss 2.12, 2.13 of the SEPP RH provide that development consent must not be granted on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. 1. In determining the development application, I am satisfied the provisions of Chapter 2 of SEPP RH are met on the following basis: 1. The subject site is separated by Henley Marine Drive from the foreshore and waterway, while the built form itself is also set behind fencing and landscaping. This relationship with the foreshore is consistent and compatible with the other dwellings along Henley Marine Drive. 2. The abundant separation ensures that there are no environmental impacts on the foreshore areas. 3. The siting of the proposed development is within a largely compliant building envelope. This compliance, along with the high-quality design outcome, ensures that there will be no adverse visual impacts from the foreshore. 4. The proposed built form also has no adverse wind or shadow impacts. The development's high-quality architectural design is compliant with the height and floor space ratio standards in the Canada Local Environmental Plan 2013 (LEP 2013) and sits within the building envelope controls in the applicable development control plan. 5. Design input from the relevant heritage experts in the proceedings has also informed the amended development application, which also ensured that the scale and siting of the built form has an appropriate relationship with the foreshore. On this basis, the matters for consideration under ss 2.10(2) and 2.11(1)(b) are satisfied. 6. The site's detached nature and built form from the coastal area ensure that there are no adverse impacts on the coastal zone. 7. Stormwater is collected and disposed of in an orderly manner as reflected in the accompanying stormwater plan, which thereby avoids any adverse environmental impacts on the foreshore area. 1. Pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2007 (SEPP TI) the development application was referred to Ausgrid, the electricity supply authority for the area in which the development is to be carried out. The referral is required as the development application proposes development within close proximity to electricity transmission infrastructure. AusGrid provided a response raising no objections to the proposed development. On the basis of the above, I accept I can be satisfied that the development application satisfies cl 45(2) of the TI SEPP. 2. Pursuant to LEP 2013, the site is zoned R2 Low Density Residential. Development for the purpose of dwelling houses is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are: To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Pursuant to cl 4.3 'Height of Buildings' of LEP 2013, the site is subject to a maximum building height control of 8.5m. The amended development has a maximum height of 7.812m which is compliant with the development standard. 2. Pursuant to cl 4.4 'Floor Space Ratio' of LEP 2013, the site is subject to a maximum floor space ratio (FSR) of 0.5:1. The amended development has a maximum FSR of 0.5:1 which is compliant with the development standard. 3. The extent of earthworks proposed by the development application are predominately contained within the footprint of the proposed dwelling. As required by cl 6.2 Earthworks of LEP 2013, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application. 4. Pursuant to cl 6.3 'Environmentally Sensitive Land', Henley Marine Drive is identified as both a biodiversity corridor and on environmentally sensitive land. With the assistance of the Statement of Environmental Effects, the application plans and the separation of the site from the foreshore, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application. Further, I am satisfied that the development is designed, sited and will be managed to avoid any adverse environmental impact. Clause 6.3 is satisfied. 5. Clause 6.13 'Development in areas subject to aircraft noise' applies to the land as it is within an ANEF contour of 20 or greater. I am satisfied that the requirements of cl 6.13 are met on the following grounds: 1. An assessment of aircraft noise intrusion in accordance with the requirement of Australian Standard Acoustics: Aircraft noise intrusion: Building siting and construction (AS2021) has been conducted for the proposed residential development on the site. To ensure compliance with AS2021, recommendations have been made including upgrading of ceilings, walls and windows. The design of the air-conditioning should include provision of fresh air. 2. This report has also presented an acoustic assessment of the noise emission from the proposed mechanical plant such as air-conditioning outdoor condenser unit. 3. Based on the outcome of this noise assessment, it is established that compliance to the daytime, evening and night time acoustic requirements will be achieved on all occasions. 4. Noise from the operations of proposed mechanical plant will not result in an 'offensive noise' as defined in the Protection of the Environment Operation Act 1997 (POEO Act) if all the recommended acoustic mitigations in this report are implemented. Compliance with these recommendations is a requirement of the annexed conditions of consent. 1. Canada Bay Development Control Plan (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. 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" (subs 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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. The Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the Development Application No DA/2023/0219 to rely on the following plans and documents: Architectural Plans prepared by Woodward Architects Plan No. Plan Name Revision Date A.01 Cover Sheet 10 16 September 2024 A.02 Site Location & Context 10 16 September 2024 A.03 Site Photos – Street 10 16 September 2024 A.04 Site Photos – Views 10 16 September 2024 A.05 Site Photos – Neighbours 10 16 September 2024 A.06 Site Photos – Removed Trees 10 16 September 2024 A.07 Site Analysis 10 16 September 2024 A.08 Site Survey 10 16 September 2024 A.09 Street Character Analysis 10 16 September 2024 A.10 Site Plan 10 16 September 2024 B.01 Demolition Plan 10 16 September 2024 B.02 Proposed Basement Floor Plan 10 16 September 2024 B.03 Proposed Ground Floor Plan 10 16 September 2024 B.04 Proposed First Floor Plan 10 16 September 2024 B.05 Proposed Roof Plan 10 16 September 2024 B.06 FSR Calculations 1 10 16 September 2024 B.07 FSR Calculations 2 10 16 September 2024 B.08 Landscape Calculations 10 16 September 2024 B.09 Landscape Calculations 2 10 16 September 2024 B.10 Cut & Fill 10 16 September 2024 C.01 Proposed Northern Elevation 10 16 September 2024 C.02 Proposed Eastern Elevation 10 16 September 2024 C.03 Proposed Southern Elevation 10 16 September 2024 C.04 Proposed West Elevation 10 16 September 2024 D.01 Proposed Section A 10 16 September 2024 D.02 Proposed Section B 10 16 September 2024 D.03 Proposed Section C & D 10 16 September 2024 D.04 Proposed Section E & F 10 16 September 2024 D.05 Proposed Section G & H 10 16 September 2024 E.01 Sun Study 1 10 16 September 2024 E.02 Sun Study 2 10 16 September 2024 E.03 Sun Study 3 10 16 September 2024 E.04 Sun Study 4 10 16 September 2024 E.05 Sun Study 5 10 16 September 2024 E.06 Site Waste & Stormwater 10 16 September 2024 F.01 Material Schedule 10 16 September 2024 F.02 External Doors 1 10 16 September 2024 F.03 External Doors 2 10 16 September 2024 F.04 External Windows 1 10 16 September 2024 F.05 External Windows 2 10 16 September 2024 F.06 External Windows 3 10 16 September 2024 X.1 3D Visualisation (Proposal) 10 16 September 2024 X.2 3D Visualisation (Massing) 10 16 September 2024 X.3 Envelope Massing 1 10 16 September 2024 X.4 3D Visualisation Entry 10 16 September 2024 Landscape Plans prepared by Dangar Barin Smith Plan No. Plan Name Revision Date DA01-D2223 Cover Page F 29 August 2023 DA02-D2223 Basement Landscape Plan F 29 August 2023 DA03-D2223 Ground Landscape Plan F 29 August 2023 DA04-D2223 Level 1 Landscape Plan F 29 August 2023 DA05-D2223 Landscaped Area / Deep Soils Plans F 29 August 2023 DA06-D2223 Canopy Coverage F 29 August 2023 DA07-D2223 Details F 29 August 2023 Stormwater Plans prepared by Resolute Stormwater Plan No. Plan Name Revision Date 23-0051/D1 Details, Notes & Legend B 22 August 2024 23-0051/D2 Stormwater Management Plan B 22 August 2024 23-0051/D3 Stormwater Details B 22 August 2024 23-0051/D4 Stormwater Details B 22 August 2024 23-0051/D5 Stormwater Details B 22 August 2024 23-0051/D6 Stormwater Details B 22 August 2024 23-0051/D7 Sediment Control Plan B 22 August 2024 23-0051/D8 Sediment Control Details B 22 August 2024 Noise Assessment Report prepared by Blackett Acoustics Plan No. Plan Name Revision Date BA240806 Noise Assessment Report B September 2024 Heritage Expert Review prepared by GBA Heritage Plan No. Plan Name Revision Date - Heritage Expert Review 1 2 September 2024 NatHERS and BASIX Assessment prepared by Efficient Living 1389926S_07 NatHERS and BASIX Assessment C 26 September 2024 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA/2023/0219 for the demolition of the existing dwelling and associated structures, construction of a new part 2- part 3-storey dwelling with basement parking for 2 car spaces, a swimming pool, spa and associated landscaping on land legally described as Lot C in Deposited Plan 379223 known as 131 Henley Marine Drive, Drummoyne NSW 2047. ………………………. D Dickson Commissioner of the Court 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: 23 October 2024