Land and Environment Court New South Wales Medium Neutral Citation: Sutherland v City of Canada Bay Council [2024] NSWLEC 1785 Hearing dates: Conciliation Conference on 17 and 18 September 2024 Date of orders: 05 December 2024 Decision date: 05 December 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The appeal is upheld. (2) The request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 to vary the development standard for the floor space ratio control contained within cl 4.4 thereof, as prepared by Sutherland & Associates Planning dated 3 September 2024, is upheld. (3) Development consent is granted to development application No. DA2024/0051 as amended for alterations and additions to an existing dwelling at 2 Lyons Road, Drummoyne, 2047, also legally known as Lots D and E in DP 19157, is approved subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variation – views - orders Legislation Cited: Coastal Management Act 2016 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7 Land and Environment Court Act 1979, ss 34, 34AA Canada Bay Local Environmental Plan 2013, cll 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pts 6.2, 6.5, ss 6.6, 6.61, 6.62, 6.7, 6.8, 6.9, 6.10, 6.28 State Environmental Planning Policy (Sustainable Building) 2022, Ch 2, s 2.1 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, 4, ss 2.12, 2.13, 4.6 Texts Cited: Canada Bay Development Control Plan 2023 Category: Principal judgment Parties: Aaron Sutherland (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: C Ireland (Applicant) K Mortimer (Solicitor) (Respondent) Solicitor: Addisons (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2024/241523 Publication restriction: Nil 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 by the City of Canada Bay Council of development application DA2024/0051 (the DA). The DA sought consent for alterations and additions to an existing dwelling at 2 Lyons Road, Drummoyne, 2047, also legally known as Lots D and E in DP 19157 (the site). 2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 30 July 2024. The Applicant filed a Statement of Facts and Contentions in Reply with the Court on 12 August 2024. 3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 September 2024. I presided over the conciliation conference, which commenced with an on-site view, attended by three submitters who made submissions to the Court. 4. An extensive viewing of the site was undertaken from the three apartments occupied by the submitters. This viewing was assisted by temporary wireframes erected on the roof of the existing dwelling on the site, to illustrate the reduction in impacts on views arising from the changes proposed in the amended plans. 5. At the first day of the conciliation conference, the parties advised that they had reached an in principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 6. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions. 7. The signed s 34 agreement, Annexure A (Conditions of Consent) and amended architectural plans were filed on 17 September 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. 8. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC. 9. In particular the changes in the amended DA included: 1. Lowering of roof levels across the proposed development; and 2. Moving the proposed structure further off the western side of the existing dwelling. 1. On 6 September 2024 the Applicant filed the joint planning report (Joint Report) with the Court. On 12 September 2024 the Applicant filed an addendum to the Joint Report prepared by the experts (Addendum Joint Report), which confirmed the experts' positions on the view impacts and included consideration of an additional view analysis. The Addendum Joint Report also addressed the matters raised in cl 6.4(3) of the Canada Bay Local Environmental Plan 2013 (the LEP) relating to the foreshore area. 2. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows. Jurisdictional Prerequisites Environmental Planning and Assessment Act 1979 Owner's consent 1. Owner's consent was provided by the Applicant in the lodgement of the DA. Community Participation (Sch 1, Div 2, subs 7(1) EPA Act) 1. The DA was publicly notified between 22 March 2024 and 12 April 2024. Three submissions were received objecting to the proposed development. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act. Canada Bay Local Environmental Plan 2013 1. The LEP applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R3 - Medium Density Residential pursuant to cl 2.2 of the LEP; and 1. Development for the purpose of a dwelling house is permitted with consent under cl 2.3 of the LEP; 2. Demolition is permitted with consent under cl 2.7 of the LEP; 3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Clause 4.3 of the LEP relates to height of buildings. The site has a maximum building height of 11m under the LEP. The parties advise that: 1. the final architectural plans demonstrate that the proposed alterations and additions will increase the maximum RL of the roof by 0.815m from 11.72m, resulting in an overall building height of 12.54m from an existing ground level of RL 2.35m, which is less than the height limit of 11m contained in the LEP. 1. Clause 4.4 of the LEP relates to floor space ratio (FSR). Under the FSR Map in the LEP, the maximum floor space ratio (FSR) applicable to the Site is 0.5:1, which allows for a gross floor area (GFA) of 628.5 square metres based on a site area of 1,257 square metres. The existing dwelling has a total GFA of 769 square metres (0.612:1 FSR) which equates to a variation to the standard by 140.5 square metres (0.11:1). The parties advise that: 1. The proposed alterations and additions will result in the development on the Site having a total GFA of 823 square metres (0.655:1); 2. The proposed GFA is 194.5 square metres more than permitted and results in a 30.9% variation to the standard, or an incremental increase of 54 square metres (8.6%) from the existing FSR. This calculation is based on the inclusion of the basement swimming pool and associated areas to the total GFA count; 3. The proposed FSR is less than that which could be achieved on the site under the existing LEP controls by a residential flat building; and 4. The existing character surrounding the site is of buildings which are higher and have greater density than the current planning controls would permit. 1. The Applicant submitted a cl 4.6 written request for the amended DA prepared by Sutherland & Associates Planning dated 3 September 2024. The parties have advised that the Court can be satisfied that compliance with the FSR development standard in cl 4.4 of the LEP is unreasonable or unnecessary in the circumstances that there are sufficient environmental planning grounds to permit the variation, and that the development is in the public interest because it achieves the objectives of the R3 zone in the LEP. 2. I am satisfied that the Applicant's cl 4.6 written request is well founded and that the variation to the maximum FSR standard is acceptable noting that: 1. The proposed development is compliant with the maximum height control established by cl 4.4 of the LEP which, in conjunction with the FSR variation, will not result in any impact on the streetscape which could be considered to be incompatible with the desired future character of the locality. 2. The proposed FSR is less than that which could be achieved on the site in the form of a residential flat building, and the proposed height is less than the building height control, therefore the bulk and scale of the dwelling as proposed to be altered is compatible with the desired future character of the area; 3. The proposed development has been designed and sited to minimise the proposed variation to the floor space ratio control, and will not result in any unreasonable amenity impact to the surrounding properties in terms of overshadowing or loss of privacy, loss of views, acoustic impacts or visual impacts; 4. The proposed addition does not result in any meaningful impact when viewed from the Parramatta River; and 5. The proposed development meets objective 1(a) of cl 4.6 of the LEP in allowing flexibility in relation to the FSR development standard which will achieve a better planning outcome in this instance. 1. I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP, because the proposed development achieves the objectives of the FSR development standard, notwithstanding the FSR exceedance for the reasons provided within the Applicant's written request, which I adopt. 2. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons: 1. The existing dwelling on the site was approved and constructed at a time when there was no FSR control applying to the land, and as a result the existing dwelling already exceeds the current FSR control. The incremental increase proposed in FSR is 8.6% to provide 54m2 of additional floor space in the dwelling; 2. The proposed addition to the existing dwelling results in an FSR below the maximum FSR allowed for multi-dwelling housing and residential flat buildings in the locality; 3. A significant amount of the gross floor area which contributes to the extent of the FSR variation on the site is located below ground and within the basement of the existing dwelling; and 4. The proposed variation does not result in any material impacts on the surrounding properties. 1. Approval of the proposed development will be in the public interest for the reasons provided above, and because the proposed development is consistent with the objectives for the FSR development standard and for development within the R3 zoning of the subject site for reasons provided within the Applicant's written request, which I also adopt. 2. Clause 5.10 of the LEP relates to heritage conservation. The parties submit that the site is not identified as a heritage item under Sch 5 of the LEP or being located within a heritage conservation area. 3. Clause 6.1 of the LEP relates to Acid Sulfate soils. The parties advise that the site is identified as Class 2 and 5 land on the Acid Sulfate Soils Map under the LEP, however the proposed alterations and additions do not involve the carrying out of works that would disturb, expose or drain acid sulfate soils and cause environmental damage, and accordingly the Court can be satisfied that consent can be granted to proposed development. 4. Clause 6.2 of the LEP relates to earthworks. The parties advise that the proposed development does not require any excavation. 5. Clause 6.4 of the LEP relates to limited development on the foreshore area. The objective of cl 6.4 of the LEP "is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area." Clause 6.4(2) provides that development consent must not be granted for development on land in the foreshore area, except for a number of exceptions including "the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area". 6. The existing dwelling is located partly located within the foreshore area, and the DA proposes alterations and additions to the existing building. The parties provided an assessment of the matters at cl 6.4(3) (and the Addendum Joint Report) and advised that: 1. The development is consistent with the objectives of the R3 zone as the building on the site remains a single, detached dwelling and therefore results in no change to the variety of housing types in the zone; 2. The existing roof line is to be extended over the additional bedroom and the design and appearance of the addition has been integrated into the design of the existing dwelling. The proposed second level addition would be compatible with the surrounding area both from the waterway and the foreshore. Adjoining development, both residential flat buildings and dwelling houses, are generally of a greater scale and density to the existing and as amended dwelling house; 3. The proposed addition on Level 2 (the third storey) of the existing dwelling sits entirely within the existing footprint of the dwelling. The addition will be connected to the existing drainage system for the house. As such, the development will not result in any environmental harm; 4. The development will have no impact on people using open space areas or the waterway, nor will it have impact on public access to the foreshore; 5. The development relates to an addition on Level 2 (the third storey) of a building approved in 2001 and the development is not in the vicinity of any heritage items. For these reasons the development will maintain the significance of the land and surrounding land; 6. The proposed addition has been integrated into the design of the existing building. The addition continues the existing roofline, and the materials and finishes will be consistent with the existing dwelling. The addition sits within the footprint of the existing dwelling. Further, the projection of the development of the FBL (the Foreshore Building Line) will not have any adverse impact on the amenity or appearance of the foreshore; and 7. The proposed alterations and additions are to an existing dwelling. The projection of the development of the FBL will not have impacts on sea level rise or change flooding patterns as a result of climate change. 1. The parties advise that the matters listed in cl 6.4(4) have been taken into account as follows: 1. The site adjoins the waterway, however there is currently no public access along the foreshore; 2. The proposed development will have no impact on the open space on the site; and 3. The FBL is approximately 13 metres from the north-west boundary and 15 metres from the south-east boundary. The second level structure already extends beyond the FBL and the proposed amendment to the plans minimise and limit any new structure extending beyond the FBL to only a relatively small area of the balconies of the proposed bedrooms. As such, the proposal would not dominate the foreshore or adversely impact on the character of the immediate foreshore area. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) relates to water catchments and applies to the site. 2. The site is located within the Sydney Harbour Catchment and is therefore land in a Regulated Catchment for the purposes of Part 6.2, Division 2 of the Biodiversity SEPP, which sets out the relevant considerations for a consent authority in deciding to grant development consent to development on land in a regulated catchment. 3. Section 6.6 of the Biodiversity SEPP (water quality and quantity) applies to the site, which is located within the Sydney Water Drinking Catchment. By virtue of a note to s 6.6(3), Part 6.5 of the SEPP BC contains the provisions requiring development in the Sydney Drinking Water Catchment to have a neutral or beneficial effect on water quality. 4. Accordingly, the parties submit that ss 6.61 and 6.63 of Pt 6.5 of the Biodiversity SEPP apply to the proposed development. 5. The parties advise that in relation to Pt 6.5 of the Biodiversity SEPP: 1. The proposed alterations and additions to the dwelling on Level 2 will be connected to the existing stormwater system and will not have any adverse impact on the water flow in a natural water body, nor will it increase the amount of stormwater run-off from the site; and 2. Given the minor scale of the development, there will be no impact on the level and quality of the water table, nor will there be any cumulative environmental impacts on the Sydney Drinking Water Catchment. 1. Further, the parties submitted that in relation to ss 6.7, 6.8, 6.9, 6.10 and 6.28 of the Biodiversity SEPP, the proposed development complies with the relevant provisions and that the Court may be satisfied that consent can be granted to the carrying out of the proposed development on the site. State Environmental Planning Policy (Sustainable Building) 2022 1. The Applicant submitted BASIX Certificate No A1737808 prepared by Growing Stones dated 28 February 2024 with the Class 1 Application. The embodied energy report required by cl 2.1(5) of the State Environmental Planning Policy (Sustainable Building) 2022 (the Sustainability SEPP) forms part of the online BASIX tool and is covered by the BASIX Certificate. 2. The parties advise that the proposed amendments to the plans do not change this BASIX Certificate and accordingly, the Court can be satisfied that the embodied the emissions attributable to the proposed development have been quantified. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The parties advise that the site is mapped as being within the Coastal Environment Area and Coastal Use Area under State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience and Hazards SEPP). In accordance with ss 2.12 and 2.13 of the Resilience and Hazards SEPP, the parties submit that: 1. The proposed alterations and additions do not extend any further beyond the FBL than the existing dwelling and the proposed development will not increase the risk of coastal hazards on the site or other land; and 2. There is currently no coastal management program prepared by the Council in accordance with the Coastal Management Act 2016 or the Resilience and Hazards SEPP which applies to the site 1. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and 1. The parties have advised that the site does not have any history of contaminating uses and is currently used for a residential purpose. The proposed development is on the second level of an existing dwelling; and 2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. Canada Bay Development Control Plan 2023 1. The parties advise that all of the matters contained in s 4.15 of the EPA Act (including the Canada Bay Development Control Plan 2023) (the DCP) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions. Conclusion 1. Having considered the advice of the parties provided above at [14]-[41], I am satisfied that: 1. the Applicant's amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; 3. approval of the proposed development is in the public interest. 1. Further, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. that the City of Canada Bay Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA No.2024/0051 made on 17 September 2024 to rely on the documents specified below: Tab Documents Survey Plans prepared by LTS: Sheet No. Description Revision Date 1 Plan of Detail and Levels Over SP6272 & Lots D, E in DP 19157 known as 2 – 4 Lyons Road, Drummoyne C 12.08.24 1. 2 Plan of Detail and Levels Over SP6272 & Lots D, E in DP 19157 known as 2 – 4 Lyons Road, Drummoyne C 12.08.24 3 Plan of Detail and Levels Over SP6272 & Lots D, E in DP 19157 known as 2 – 4 Lyons Road, Drummoyne C 12.08.24 4 Plan of Detail and Levels Over SP6272 & Lots D, E in DP 19157 known as 2 – 4 Lyons Road, Drummoyne C 12.08.24 Revised Architectural Plans prepared by Quattro Architecture: Drawing No. Description Revision Date DA_A_000 Cover Sheet D 28.08.2024 DA_A_020 Survey and Existing Site Plan D 28.08.2024 DA_A_050 Existing Plans D 28.08.2024 DA_A_051 Existing Plans D 28.08.2024 DA_A_052 Existing Elevations D 28.08.2024 DA_A_058 Proposed Site Plan D 28.08.2024 2 DA_A_100 Proposed Level 2 D 28.08.2024 DA_A_101 Proposed Roof D 28.08.2024 DA_A_200 Proposed North & South Elevation D 28.08.2024 DA_A_201 Proposed West & East Elevation D 28.08.2024 DA_A_250 Proposed Sections D 28.08.2024 DA_A_500 Building Areas D 28.08.2024 DA_A_600 Exterior Finishes D 28.08.2024 DA_A_900 Window Schedule D 28.08.2024 3. Revised Clause 4.6 Written Request (Floor space ratio) prepared by Sutherland & Associates Planning and dated 3 September 2024 1. BASIX Certificate No A1737808 dated 28 February 2024, prepared by Growing Stones. 2. The amended DA was filed with the Court on 17 September 2024. 1. The Court orders that: 1. The appeal is upheld. 2. The request pursuant to cl 4.6 of the Canada Bay Local Environmental Plan 2013 to vary the development standard for the floor space ratio control contained within cl 4.4 thereof, as prepared by Sutherland & Associates Planning dated 3 September 2024, is upheld. 3. Development consent is granted to development application No. DA2024/0051 as amended for alterations and additions to an existing dwelling at 2 Lyons Road, Drummoyne, 2047, also legally known as Lots D and E in DP 19157, is approved subject to the conditions of consent in Annexure A. G Kullen Acting 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: 05 December 2024