Land and Environment Court New South Wales Medium Neutral Citation: Dickinson v City of Canada Bay Council [2019] NSWLEC 1017 Hearing dates: Conciliation conference on 13 December 2018 Date of orders: 18 January 2019 Decision date: 18 January 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [12] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2015 Sydney Regional Environment Plan (Sydney Harbour Catchment) 2005 Texts Cited: Canada Bay Development Control Plan 2017 Category: Principal judgment Parties: Linda Dickinson (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: D Briggs, DG Briggs & Associates (Applicant) S Kondilios, Hall & Wilcox (Respondent) File Number(s): 2018/166315 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal by the City of Canada Bay Council of Development Application (DA) 2018/0010, which seeks construction of a (retractable) shade structure on the existing terrace in Lot 6 SP 61583, specifically within Unit 6, 56a St Georges Crescent, Drummoyne. 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 13 December 2018. I have presided over the conciliation conference. There was one objection raised by a third party at this conciliation, which related to precedence. 4. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 2018/0011 with conditions. 5. Under s 34(3) of the LEC Act 1979, 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(1) of the EPA Act 1979 to grant consent to the DA with conditions. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Sydney Regional Environment Plan (Sydney Harbour Catchment) 2005 (SREP 2005), specifically related to Zone W7 and relationship to Queen Victoria Reserve; Canada Bay Local Environmental Plan 2013 (CBLEP 2013), specifically cl 4.3 (height) and cl 4.6 (variation); and Canada Bay Development Control Plan 2017 (CBDCP 2017), specifically relating to streetscape appearance and view loss. 7. The site is located within an R3 medium density residential zone, pursuant to CBLEP 2013. The site is within an existing six lot strata development and currently satisfies the requirements of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2015 (SEPP 2015). 8. The parties explained that the proposed shade structure has been amended from the initially proposed 'vergola' to a retractable awning, which has been designed to minimise impact to the streetscape and potential loss of views due to its open sided nature and non-permanent roof structure. As a result of the conciliation conference the design of the shade structure was amended to have: a retractable roof; limited area of coverage to allow for improved border planting; positioned to ensure amenity (solar) benefit on the site without adverse amenity (view loss/overlooking) impact to the neighbouring developments; and have limited proportional perception when viewed from the street/Reserve. 9. The parties explained that despite the proposed shade structure not complying with the maximum height standard in cl 4.3 of the CBLEP 2013, a variation of the standard is reasonable based on the cl 4.6 written request for variation, made pursuant to cl 4.6 of the CBLEP 2013. The proposed retractable awning, is acknowledged to exceed the CBLEP 2013 height standard (of 8.5 m), and will exceed the maximum height of the existing building by 150 mm, which does not currently satisfy the cl 4.3 height requirement. The proposed awning does not change the character of the existing building to the streetscape and due to the retractable nature of the roof will not be a dominant feature or result in loss of amenity, particularly view loss or overlooking. The proposed structure is not inconsistent with the objectives of the zone and the height standard, as established in the CBLEP 2013. There are sufficient environmental planning grounds established by the non-permanent (retractable) roof and sufficient setback of the structure on the terrace. The proposed structure is therefore in the public interest. The proposed height exceedance is reasonable and necessary, resulting in a minor height increase of 150 mm above the existing non-compliance, that will not be perceived when viewed from the street or Reserve. 10. I am therefore 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 1979. I am satisfied that there are no adverse precedence implications. 11. As the parties' decision 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 1979 to dispose of the proceedings in accordance with the parties' decision. 12. The Court orders: 1. The Applicant is granted leave to rely on amended plans as set out in Annexure A and documentation referred to in condition 1 of Annexure A. 2. The Appeal is upheld. 3. Development Application DA2018/0010 for the erection of a retractable awning over the existing terrace surface is approved subject to the conditions at Annexure B. 4. No cost order is made. ………………………. S Bish Commissioner of the Court Annexure A Annexure B ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2019