Land and Environment Court New South Wales Medium Neutral Citation: Theo Alexakis v City of Canada Bay Council [2017] NSWLEC 1343 Hearing dates: 12 and 14 December 2016, 10 January 2017 Date of orders: 18 July 2017 Decision date: 29 June 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: See directions at [91] Catchwords: Development Application: demolition of existing structure; construction of two storey attached dual occupancy dwelling, cl4.6 request to contravene development standard for floor space ratio. Legislation Cited: City of Canada Bay Council Local Environment Plan 2013 Contaminated Land Management Act 1997 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (SEPP) 55 Cases Cited: Moskovich v Waverley Council [2016] NSWLEC 1015 Schaffer Corp v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Texts Cited: City of Canada Bay Development Control Plan 2012 Managing Land Contamination: Planning Guidelines SEPP 55 - Remediation of Land. Department of Urban Affairs and Planning/Environment Protection Authority (1998) Category: Principal judgment Parties: Theo Alexakis (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: S. Berveling (Applicant) T. Bush (Respondent) Solicitors: Hartley Solicitors Pikes & Verekers Lawyers File Number(s): 2016/250288 Publication restriction: Nil Judgment Background 1. COMMISSIONER: This appeal concerns a proposal for the demolition of an existing dwelling and other structures, and the construction of a two storey attached dual occupancy development with basement storage and car parking at 32 Sanders Parade, Concord (Subject Site). 2. The Subject Site is located on the south eastern corner of Sanders Parade and Salt Street, Concord and has an area is 471 m². 3. The Applicant has appealed the decision of City of Canada Bay Council to refuse consent for its development application (DA) 2016/0161 lodged on 28 April 2016. The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The development application was the subject of a conciliation conference under s.34AA of the Land and Environment Court Act 1979 (the LEC Act) on 11 August 2016. 5. An inspection of the Subject Site was undertaken as part of the s34AA conciliation conference. During the inspection submissions were received from the following objectors: 1. Ms Lia Abate, on behalf of Mr and Mrs Sanfilippo, of 51 Salt St, Concord; 2. Ms Lyn Alagaich of 36 Salt St, Concord. 3. Ms Margaret Hall, of 34 Salt St, Concord. 1. Issues raised by the objectors included the potential impact of the proposed development in relation to bulk and scale, heritage, overshadowing, views, materials, streetscape, and local character. 2. The conciliation process was unable to resolve all contentions between the Parties and was terminated, with the appeal heard forthwith. Planning considerations 1. The EPA Act requires, under s79C(1), that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: 1. the provisions of: 1. any environmental planning instrument, and 2. any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and 3. any development control plan, and 4. any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and 5. the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and 6. any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, 1. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, 2. the suitability of the site for the development, 3. any submissions made in accordance with this Act or the regulations, 4. the public interest. 1. The proposed development is subject to provisions the Canada Bay Local Environment Plan 2013 (LEP 2013), which was made on 21 December 2015, and commenced operation on 15 February 2016. Under LEP 2013 the Subject Site is zoned R2, and the proposed development is permissible with consent. 2. It is also subject to the provisions of City of Canada Bay Development Control Plan 2013 (DCP 2013). 3. The proposed development is also subject to the provision of State Environmental Planning Policy 55 Remediation of Land (SEPP 55), and the Sydney Region Environmental Plan (SREP) Sydney Harbour Catchment. Contentions 1. At the commencement of the hearing the Applicant sought leave to rely on amended plans and leave was granted. 2. The Parties advised that the amended plans had resolved certain matters and that certain matters that had been in contention between them were no longer pressed by the Respondent. These contentions were: 1. Building height; 2. Building plane envelope; 3. Overshadowing in relation to impacts on adjoining properties; 4. Landscaping area; 5. Significant views from neighbouring heritage properties; 6. Acid sulphate soils management. 1. The remaining contentions addressed during the hearing were: 1. The floor space ratio FSR of the proposed development in relation to: 1. whether the calculation of the FSR should include certain spaces in the basement area of the proposed development, and 2. whether a written request to vary the FSR standard made under clause 4.6 of LEP 2013 (clause 4.6) should be accepted; 1. Bulk and scale/streetscape – whether the presentation of the proposed development was in keeping with the desired future character of the locality; 2. Building roof form – whether the pitched roof design provided in the amended plans was acceptable; 3. Landscaping – whether the proposed development's compliance with the landscape control was sufficient or whether a landscape plan was required should consent be granted to the proposed development; 4. Materials – whether the proposed use of weatherboard materials on the first floor should be approved; 5. Overshadowing – whether adequate solar access was available to the rear yard of the proposed development; 6. Deferred commencement condition – whether proposed deferred commencement conditions requiring preparation of stormwater management plans and a preliminary environmental site inspection should be imposed if the proposed development received consent. 1. During the hearing, the Parties agreed that the area of landscaping in the proposed development complied with the numeric requirements of the LEP 2013 and DCP 2013. I am satisfied that, given the proposed development is for a dual occupancy on a single lot, the need for preparation of a landscape plan, could be addressed through a condition of consent. 2. The Applicant also confirmed in written submissions that it would accept a deferred commencement condition in relation to the preparation of a stormwater management plan, but would not accept a deferred commencement condition requiring it to undertake a Preliminary Site Investigation (PESI) in relation to potential site contamination. 3. The principal issue addressed during the hearing was the Applicant's proposed contravention of the FSR standard applicable to the proposed development under LEP 2013. Consideration of that matter, and the expert testimony on it from the planning experts, required that other contentions be addressed in parallel. 4. Consequently, I will give consideration first to the FSR issue. Other contentions remaining unresolved following consideration of the FSR contention will then be addressed. Is the proposed FSR exceedance acceptable? 1. Both Parties agreed that the proposed development exceeds the LEP 2013 development standard for FSR of 0.5:1, although the planning expert witnesses, Mr Anthony Betros for the Applicant and Mr Justin Keen for the Respondent, differed as to the scale of that exceedance. Mr Betros, said that the FSR of the proposed development is 0.58:1, while Mr Keen said that it is 0.64:1. The difference in the calculation arose from whether certain areas of car-parking and storage areas in the underground level of the proposed development should be excluded from the calculation of gross floor area (GFA), and so of FSR. Should certain areas of proposed car-parking be excluded from the calculation of GFA? 1. The definition of GFA in LEP 2013 provides that it should exclude, amongst other things, any car-parking to meet the requirements of the consent authority (including access to that car parking). 2. The proposed development includes provision of two car spaces for each of the dual occupancy dwellings. The car parking requirements applicable to the proposed development within the City of Canada Bay DCP 2013 requires (under cl.5.3.8 Control C3) that: Dwelling houses and Attached Dual Occupancies are to provide at least one (1) car parking space per dwelling. Garaging for more than two (2) cars is considered excessive and additional floor area will be included in gross floor area calculation. The Parties differed as to the interpretation of this control. 1. The Applicant, in written submissions, said that the second car space in each dwelling should be excluded from the calculation of GFA as Council's requirement was for 'at least one and no more than two spaces'. 2. However, he Respondent submitted that Council's control required only a minimum of one car parking space per dwelling, and that only the area associated with that single car parking space ought to be excluded from the calculation of GFA. 3. Control C3 says that it is the provision of garaging for more than two cars that is considered excessive, and that it is in that circumstance that additional floor area will be included in the calculation of GFA. The control is silent with respect to the inclusion of any second car space area in the calculation of GFA. 4. In my view Control C3 provides that a second car space (but no more) is able to be included in the design of a dwelling without its area being included in the calculation of GFA, and so in the calculation FSR for a dwelling. 5. Consequently, I find that the Respondent's submission that the second car space area should be included in the calculation of GFA is not consistent with the definition of GFA in LEP 2013, and that the Applicant's interpretation of the treatment of car spaces within the calculation of GFA should be accepted. Should certain areas of proposed underground storage area be excluded from the calculation of GFA? 1. The Parties also did not agree on the extent of the underground storage space, to the south of the proposed underground parking, that should be included in the calculation of GFA. 2. The GFA definition within LEP 2013 says that any basement storage areas should be excluded. The LEP also defines a 'basement' as 'the space of a building where the floor level of that space is predominantly below ground level (existing) and where floor level of the storey immediately above is less than 1m above ground level (existing). 3. The planning experts differed in their view as to whether certain of the underground storage spaces to the south of the car parks were located within a 'basement' as defined in the LEP, and therefore whether these should be excluded from the calculation of GFA. 4. The Respondent said that the Applicant's expert witness had conceded in the hearing that some of the storage areas may formally fall outside the technical definition of basement. However, the Applicant responded that any such statement was dependent upon its acceptance of the methodology adopted by Mr Keen, which it challenged. The Respondent also said that the extent of any such areas would be difficult to quantify. 5. I have reviewed the amended plans tendered at the hearing and have confirmed to my satisfaction that the ground floor level is less than 1m over the proposed storage level, and therefore should not be included in the calculation of GFA. 6. As a result, I am of the view that FSR of the proposed development is 0.58:1. This FSR is in contravention of the FSR standard for the Subject Site under LEP 2013, which is 0.5:1. This 16% contravention arises from the design of the ground and first floors of the proposed development. 7. If I am wrong in relation to the calculation of FSR, I am of the view that any additional area of FSR would only be attributable to a small area of the proposed storage space and it would not materially influence the outcome of my considerations in relation to the acceptability or otherwise of the contravention under cl4.6 of LEP 2013. Should the Applicant's cl.4.6 request to contravene the FSR standard be supported? 1. The Applicant has submitted a written request to contravene the FSR standard under cl4.6 of LEP 2013. Following the hearing the Parties provided written submissions in relation to this request. The Applicant was also granted leave to rely on an amended cl.4.6 request should the Court support the Respondent's position on the calculation of FSR. In respect of this, the Respondent was also granted leave provide an amended submission with respect to the cl.4.6 request. 2. Clause 4.6 of LEP 2013 provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note. When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (ca) clauses 6.4 and 6.5. 1. As I have accepted the Applicant's submission that the FSR of the proposed development is 0.58:1, I rely on the Applicant's initial cl.4.6 written request, tendered in evidence during the hearing, in respect of my considerations on this matter. 2. Under cl.4.6 (3) of LEP 2013, a consent authority must not grant consent unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the standard In addition, under cl.4.6(4), the consent authority must also be satisfied that: 1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out. 1. The Applicant has provided a written request which was prepared by Mr Betros to contravene the FSR development standard in line with the requirements of cl4.6(3). Is compliance with the standard unreasonable and unnecessary in the circumstances of the case? 1. In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 in which five pathways were identified that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary. 1. Of these, the first is the most relevant for the matter before me, because: 1. the underlying objective or purpose of the standard is relevant to the proposed development; 2. the underlying objective or purpose would not be defeated or thwarted if compliance was required; 3. no evidence was presented to suggest that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard; 4. the zoning of particular land is not unreasonable or inappropriate. 1. In considering whether the objectives of the development standard are achieved notwithstanding non-compliance with the standard, I note that the objectives of the FSR standard in LEP 2013 are: (a) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (b) to provide a suitable balance between landscaping and built form (c) to minimise the effects of bulk and scale of buildings Is the proposed development compatible with the bulk and scale of the desired future character of the locality? 1. The Subject Site falls within the Concord East area of the City of Canada Bay, and DCP 2013 includes the following statement of desired future character for the Concord East area: 1. New development should relate to the dominant inter-war character of this area. Two story development should be carefully designed to retain the open quality of the streetscape by continuing the low scale and horizontal emphasis of the existing housing stock. Space between houses should also be retained. Fencing should be kept low allowing views into the front gardens. The landscaped area of the front yard should not be dominated by driveways. 1. The DCP also provides the following design guidelines of relevance to the bulk and scale of developments in this area: 1. scale: emphasis should be on single-storey development with two storey development set back from the main building line as far as possible; 2. building form: houses should use simple forms with low to medium pitched roof is (25-30 degrees) and emphasis on low horizontal lines. Massing should be simple with only 2 or 3 building planes facing the street. Eaves, verandas and other devices to create shadows and give depth to street elevations of the houses should be used. 1. The proposed development presents as a two storey to its southern, eastern and western elevations and as two/three storey to its northern (front) elevation. The proposed upper story is set back from the main building line on the east and west elevations. 2. The area around the Subject Site contains many examples of two storey dwellings. At least one development close to the Subject Site, at 49 Salt St, is of a two/three storey presentation, although this dwelling is not located on a corner block. 3. Further, both Parties agreed that the proposed development does not breach the height control (7.2m) or the building plane control applicable to the Subject Site within DCP 2013. It is reasonable to assume that, given the nature of the controls, that a dwelling of the bulk and scale proposed would occupy the Subject Site at some point. 4. The cl4.6 request notes that amended design for the proposed development has a pitched roof (at 10 degrees), and it was the evidence of the Respondent's planner, Mr Keen, that, while he would prefer a roof with a 25 to 30 degree pitch, this amended design represented an improvement on the flat roof design originally proposed by the Applicant. 5. Several developments in proximity to the Subject Site also have flat roof forms. These include the dwellings at 49 Salt St and 20 Sanders Parade. Some other recently constructed dwellings in Sanders Parade and Salt St have low profile roof forms that differ from the pitched roof form of 25-30 degrees suggested in DCP 2013. 6. Mr Betros, in the cl4.6 request noted that the amended plans, whilst providing for contemporary built form, included a pitched roof, materials and finishes that are consistent with the provisions of the Concord East character area. He also noted that the increased area of landscaping on the western side setback of the proposed development along alt Street, together with a reduction in the proposed fence height, enhance the presentation to Salt Street 7. Having considered the above points, I accept the position of the Applicant that: 1. the locality of the Subject Site in Sanders Parade and Salt St is an area in transition; 2. the proposed development, as detailed in the amended plans, is consistent with other recently constructed dwellings in the area; 3. the proposed development is compatible with the desired future character of the locality. Does the proposed development provide a suitable balance between landscaping and built form 1. As noted above, the proposed development is compliant with the height and building plane controls applicable to the Subject Site. 2. The Parties also agree that the landscaping in the proposed development meets the landscaping control for a two storey dwelling on the Subject Site, which requires landscaping to cover at least 37% of the site area. The proposed development provides 40% of the site area as landscaping area. 3. Based on this, I consider that the proposed development does provide a suitable balance between landscaping and built form. Does the proposed development minimise the effects of bulk and scale of building? 1. The cl4.6 request prepared by Mr Betros notes that the amended plans had provided: 1. compliance with the building height and building plane envelope controls applicable to the proposed development; 2. a reduction in the streetscape presentation of the basement level through lowering its level and setting it back at a greater distance from the street front; 3. modifications to the ground level built form to set it back further from the front and side boundaries; 4. additional landscaping within the front setback as a consequence of the amended basement and ground floor designs; 5. modifications to increase the setback of the first floor from the front and sides of the subject site; 6. a reduction in the height of the brick balustrading for the front balconies; 7. a reduction in the overall building height. 1. The planning experts agreed that, notwithstanding a difference of views in relation to various aspects of the design, the articulations provided within the amended plans were sufficient. 2. In relation to overshadowing, the Respondent said that the bulk and scale of the proposed development resulted in unacceptable impacts to the solar access that would be available to future residents of the proposed development at the rear of the subject site. 3. In response to this, the Applicant's planning expert witness, Mr Betros, said that the north/south orientation of the Subject Site meant that any two storey development would face a similar challenge. Mr Betros noted that the primary living areas for the proposed development were located at the front, northern, part of the proposed dwelling and that the amended plans adequately address the solar access objectives set out in section 5.2.3 of DCP 2013, which are to: 1. maximise solar access to living areas and private open space in order to improve residential amenity; 2. minimise the amount of overshadowing of neighbouring developments and outdoor spaces to maintain their amenity. 1. I agree with the position of Mr Betros on this matter and accept that the proposed development adequately addresses the objectives and controls of DCOP 2103 with respect to solar access in the Subject Site. 2. Two of the dwellings in the locality, 34 and 36 Salt St, are listed as heritage items under LEP 2013. The additional front set-back provided in the amended plans will ensure that the current view lines from the front rooms of these properties, past the current dwelling on the Subject Site, and on to the parklands opposite, are retained. A 3. As noted in the cl4.6 request, the amended plans provide for a pitched roof form and a reduction in height compared to the original design. When taken together with the separation of around 25m between the proposed development and the heritage listed properties, these features will mitigate potential impacts of the proposed development on the heritage listed properties. 4. The cl4.6 request concludes, and I accept, that the combination of these changes minimises the effects of bulk and scale of the proposed development. Are the objectives of the development standard achieved notwithstanding non-compliance with the standard? 1. Having given consideration to the above points, I have concluded that the objectives of the development standard are achieved notwithstanding non-compliance with the standard. Are there sufficient environmental planning grounds to justify contravening the FSR standard? 1. A dual occupancy development is a permissible use of the Subject Site under its R2 zoning. 2. The cl4.6 request notes that the amended plans provide that: 1. The proposed development is below the height and building plane controls of DCP 2013, including more than 2m below the height limit at the southern end of the development. This outcome is achieved despite the contravention of the FSR standard. 2. there are no adverse overshadowing impacts on neighbouring properties, including on the property at 51 Salt St; 3. the rear setback to that property is greater than that required 3.6m under DCP 2013, minimising potential impacts to neighbours; 1. The increased front set back of the proposed development also ensures that the view lines from the front rooms of the heritage properties at 34 and 36 Salt St will be retained; 2. Based on my consideration of the above points, I conclude that there sufficient environmental planning grounds to justify contravening the FSR standard. Is the proposed development in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out? 1. In considering whether a proposed development is consistent with particular objectives, the approach adopted by Pearlman CJ in the case of Schaffer Corp v Hawkesbury City Council (1992) 77 LGRA 21 is relevant. In that judgement, Her Honor said [at 27] that: The guiding principle, then, is that a development will generally be consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, or even it is compatible. 1. In the case of Moskovich v Waverley Council [2016] NSWLEC 1015, Commissioner Tuor observed that the threshold of 'consistency' is different to that of 'achievement'. In relying on previous judgements of the court, including that of Pearlman CJ in Schaffer, the Commissioner noted that the test of 'consistency' is less onerous is that of 'achievement'. 2. I have previously concluded that the objectives of the FSR development standard are achieved in this case, notwithstanding the proposed development's non-compliance with the standard. 3. The objectives of the R2 zoning of the Subject Site are to: 1. provide for the housing needs of the community within a low density residential environment; 2. enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Dual occupancy dwellings are permissible within land zoned R2, and the proposed development will provide for the housing needs of the community within a low density residential environment. I conclude that the development is consistent with the objectives of developments in the R2 zone. Conclusion of consideration of the cl4.6 request to contravene the FSR standard in LEP 2013. 1. I find that the cl4.6 written request to contravene the FSR standard has demonstrated that: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and 2. that there are sufficient environmental planning grounds to justify contravening the standard; and 3. it is consistent with the objectives of the FSR standard in DCP 2013 and the objectives for the development within the R2 zone in which the development is proposed to be carried out, and so is in the public interest. 1. In reaching this conclusion, I have also accepted the position of the Applicant that: 1. the bulk and scale of the proposed development is acceptable; 2. the streetscape presentation of the proposed development is acceptable; 3. the pitched roof design of the proposed development is acceptable; 4. the overshadowing impacts of the proposed development on the Subject Site are acceptable; 5. the landscaping area of the proposed development is acceptable; 6. the preparation of a landscaping plan should be addressed through a condition of consent. Should the proposed use of weatherboard materials on the first floor should be accepted? 1. The Parties reached agreement during the hearing on certain further amendments that would be made to the amended plans prior to the issue of any construction certificate. These were reflected in the amended conditions of consent filed by the Respondent following the hearing. 2. However, the planning expert witnesses were unable to agree on one condition concerning the proposed materials for construction of the walls on the first floor. 3. Then Respondent had proposed a brick and render finish to this section of the proposed development, and the Applicant had sought a timber weatherboard or similar lightweight material. 4. The Applicant's expert witness, Mr Betros, said that he was unable to identify other dwellings in the locality that contained weatherboard style materials in their construction, and that the Concord East character description within DCP 2103 did not refer to or recommend weatherboard finishes. He said that in his opinion a brick and render finish was more consistent with other dwellings in the locality. 5. The Respondent's expert witness, Mr Keen, maintained that in his opinion, and notwithstanding the points raised by Mr Betros, a weatherboard finish would be more appropriate for the proposed development. 6. Having considered the evidence of the experts, I accept the position of Mr Betros for the reasons provided at [77] that it is unnecessary that a further amendment be made to the plans to include weatherboard timber of similar cladding be added to the first floor of the prosed development. Should the proposed development have a deferred commencement condition requiring a Preliminary Environmental Site Inspection? 1. The Subject Site is located opposite an open space recreation area known as Massey Park. The Respondent said that Massey Park had been constructed on a landfill site, and given its proximity to the Subject Site, a risk existed that some contaminated material may be disturbed on the Subject Site during construction of the proposed development. 2. For that reason the draft conditions of consent provided by the Respondent included a deferred commencement condition requiring that: 1. A preliminary environmental site investigation (PESI) should be carried out by suitably qualified and competent environment consultant and submitted to Council for further review in accordance with the NSW Office of Environment and Heritage Guidelines for consultants reporting on contaminated sites, Contaminated Land Management Act 1997 and State Environmental Planning Policy (SEPP) 55 - Remediation of Land to identify any past or present potentially contaminating activities that have occurred on the Subject Site, including if there has been any fill deposited on the site that may have been contaminated, and, if required, provide a basis for more detailed investigation. 1. Within the joint report of the planning experts, the Applicant's expert, Mr Betros, was of the opinion that, as the subject site has been continuously used for residential purposes, the possibility of contamination is considered to be low. He also commented that Council's records do not indicate that the site is contaminated in any way. He said that on this basis Council may be satisfied that the land is suitable for the use proposed. 2. The Respondent's expert, Mr Keen, said that as uncontrolled contaminated fill had been identified in the area, a PESI was required to be carried out in accordance with the provisions of the Contaminated Land Management Act 1997 and SEPP 55 to identify any past or present contaminating activities that may have occurred on the Subject Site, including any contaminated fill that may have been deposited on the site. 3. The Respondent also drew the court's attention to a publication NSW Environment Protection Authority entitled 'Managing Land Contamination: Planning Guidelines SEPP 55 - Remediation of Land' that provided a checklist for initial evaluations of contamination and which referenced landfill sites as an activity that may cause contamination. 4. While I accept the submission of Mr Betros that the risk of contamination on the Subject Site is low, and that Council's records do not indicate that the site is contaminated, I am, nevertheless, of the opinion that, given the proximity of the subject site to Massey Park, and given that Massey Park was previously the site of a landfill, it is prudent to require a PESI as a deferred commencement condition for the proposed development. I consider that the investment in such an investigation is onerous to the Applicant in these circumstances. 5. Consequently I do not accept the Applicant's submission that the deferred commencement condition requiring a PESI should be deleted. Conclusion 1. I conclude that the Applicant's proposed development (DA 2016/0161), as represented by the amended plans should be approved and form the basis for finalisation of conditions of consent for the development at 32 Sanders Parade, Concord. 2. Those final conditions of consent should: 1. include a requirement for the preparation of a landscape plan consistent with the amended plans and with City of Canada Bay Council's normal requirements for the content and finalisation of such documents; 2. delete the draft condition 16(h) requiring timber weatherboards or similar cladding material for use on the first floor external weals of the proposed development; 1. As the Applicant was granted leave to relay on amended plans at the hearing, and as the amendments were not minor, the final judgement will include an order for costs thrown away, as agreed or assessed, as a result of amending the development application, in line with the provisions of s.97B of the EP&A Act,. Directions 1. The judgement in this matter relies on the amended plans tendered at the hearing during the s34AA process. The Respondent did file revised conditions of consent for the development after the hearing. However, those conditions of consent will require further amendment to reflect the the findings in this judgement before I make final orders. 2. Accordingly, I make the following directions: 1. The parties are directed to file, by no later than Friday 14 July 2017, agreed final conditions of consent, consistent with the amended plans, my findings in this judgement; 2. On filing of the agreed amended plans and conditions of consent, orders will be made in chambers. The Parties have now filed agreed final conditions of consent. Consequently, final orders can now be made. Orders (1) The Applicant is granted leave to rely on amended plans. (2) Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away, as agreed or assessed. (3) The appeal is upheld. (4) Development consent is granted to development application DA2016/016, subject to the conditions of consent annexed hereto as Annexure "A". (5) The exhibits are returned, with the exception of Exhibits 1, A and E. ……………. Michael Chilcott Commissioner of the Court 250288.16 Chilcott (C) (560 KB, pdf) ********** Amendments 18 July 2017 - Orders made 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: 18 July 2017