Land and Environment Court New South Wales Medium Neutral Citation: Jovicic v Lake Macquarie City Council [2019] NSWLEC 1589 Hearing dates: Conciliation conference on 20 November 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [25] below Catchwords: DEVELOPMENT APPLICATION – dwelling house – height non-compliance – cl 4.6 written request – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Lake Macquarie Local Environmental Plan 2014 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2019 Texts Cited: Lake Macquarie Development Control Plan 2014 Category: Principal judgment Parties: Michael Jovicic (Applicant) Lake Macquarie City Council (Respondent) Representation: Counsel: J Reid (Solicitor) (Applicant) S Griffiths (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2019/89479 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 547/2018 by Lake Macquarie City Council (hereafter the Council) for construction of a dwelling house, pool, and garage with attached studio on Lot 22 DP 24156, also known as 6 Dodds Street, Redhead (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to 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 20 November 2019. I presided over the conciliation conference. There were four objectors whom spoke at the conciliation on issues relating to: privacy; overshadowing; height; character; drainage; view loss; and precedence. 4. Prior to the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA. Following the conciliation conference, the applicant also sought to amend the cl 4.6 written request to be relied upon. 5. Based on these amended plans and cl 4.6 written request, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 547/2018 with conditions. 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, pursuant to s 4.15(1) to grant consent to DA 547/2018 with amended plans in Annexure A and conditions, as described in Annexure B. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Coastal Management) 2019 (SEPP CM); and Lake Macquarie Local Environmental Plan 2014 (LMLEP). In addition, the Lake Macquarie Development Control Plan 2014 (LMDCP) is of consideration to grant consent to the DA. 8. The requirements of cl 14(1)(a) of the SEPP CM have been considered by the parties. The proposed development does not have any impacts on the matters listed in cl 14(1)(a). The parties agree that the Court would be satisfied that the matters listed in cl 14(1)(b), on the basis of lack of impacts to matters listed in cl 14(1)(a), are achieved. 9. The proposed development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. An updated BASIX Certificate No. 1060555S, dated 19 November 2019, is identified in the conditions of consent. 10. The parties agree that the relevant provisions of the LMLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the R2 low density zone. The proposed development is permissible in the zone. 11. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the LMLEP. The parties explained that the height of the proposed development, at a maximum of 9.35m, exceeds by 0.85m (equivalent to 10%) the height standard (of 8.5m), as specified in cl 4.3(2) of the LMLEP. This exceedance in height is limited to the central portion of the roof form. 12. Therefore, it is accepted that a cl 4.6 written request for variation of height is required for further consideration of the proposed development, pursuant to cl 4.6 of the LMLEP, and that the Court must also be satisfied of its consistency with cl 4.6 to grant consent to the DA. 13. The parties agree, as explained in the cl 4.6 written request, that the non-compliant height of the dwelling does not result in a development that is out of character with the local area, and is consistent with the low density of the area. The proposed development responds to the sloping landform, and as designed does not result in amenity impacts to the proposed residents of the site or adjoining dwellings. The relative height of the non-compliant form of the dwelling is not perceived from the street and is not inconsistent with the character of the area. 14. There are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The parties agree that the non-compliance in height is not inconsistent with the zone objectives or relevant development standard. 15. The parties therefore agree that a variation of the height development standard, pursuant to cl 4.3 of the LMLEP, is satisfied by the cl 4.6 written request, and that the requirements for a cl 4.6 variation of the height development standard is satisfied. 16. Having reviewed the amended cl 4.6 written request, I agree that the cl 4.6 written request for the height standard variation addresses the requirements of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the perception of the structures from the street, the non-compliance will not be a dominant feature as viewed from the main street frontage or result in loss of views or amenity, particularly overshadowing or privacy to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other relevant development standards. 17. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R2 zone) and the height (cl 4.3) standard, as established in the LMLEP. The proposed exceedance is reasonable and limited to a small portion of the roof form, which does not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest. 18. I am satisfied that the requirements of cl 4.6 of the LMLEP have been addressed and that a variation in the height standard, pursuant to cl 4.3 is appropriate. 19. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the LMDCP are achieved to the satisfaction of the parties. 20. The parties agree that the requirements of the LMDCP are complied with, considering the amended plans and conditions of consent. The proposed development was publicly notified on two separate occasions in accordance with cl 1.15 of the LMDCP. During the initial notification period, ten submissions were received by Council and during the second notification period, seven submissions were received. Those submissions were considered by the parties prior to reaching the agreement. The amended plans, on which the applicant relies, have been deemed to not require further notification, pursuant to cl 1.15.4 of the LMDCP. 21. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions. 22. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties. 23. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 547/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 24. 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 to dispose of the proceedings in accordance with the parties' decision. 25. The Court orders: 1. The applicant is granted leave to amend development application number DA-547/2018 and rely upon the following amended plans and documents, copies of which are behind Annexure 'A': DOCUMENT PREPARED BY DATED Detail Plan Parker Scanlon Pty Ltd 19 August 2019 Architectural plans, Revision C a) Dwg 1.01 – Title Page b) Dwg 2.01 – Site Analysis c) Dwg 2.02 – Site Plan d) Dwg 3.01 – 3Ds e) Dwg 3.02 – 3Ds f) Dwg 3.03 – 3Ds g) Dwg 3.04 – 3Ds h) Dwg 3.05 – 3Ds i) Dwg 3.06 – 3Ds j) Dwg 3.07 – 3Ds k) Dwg 3.08 – 3Ds l) Dwg 3.09 – 3D Building Envelope m) Dwg 3.10 – 3D Building Envelope n) Dwg 4.01 – Garage Floor Plan Bolster Building Design 20 September 2019 o) Dwg 4.02 – Ground Floor Plan p) Dwg 4.03 – First Floor Plan q) Dwg 4.04 – Second Floor Plan r) Dwg 4.05 – Roof Plan s) Dwg 5.01 – Elevations t) Dwg 5.02 – Elevations u) Dwg 5.03 – Elevations v) Dwg 5.04 – Elevations w) Dwg 5.05 – Elevations x) Dwg 5.06 – Sections y) Dwg 5.07 – Sections z) Dwg 6.01 – Shadow Analysis ) Dwg 6.02 – Glazing Schedule ) Dwg 6.03 – Glazing and Sedimentation Amended Written Request pursuant to Clause 4.6 Piper Planning Pty Ltd 19 November 2019 BASIX Certificate reference 1060555S Partners Energy Management 19 November 2019 1. The applicant's request pursuant to Clause 4.6 of the Lake Macquarie Local Environmental Plan 2014 in relation to the height of buildings development standard at Clause 4.3, prepared by Piper Planning dated 19 November 2019, is upheld. 2. The appeal is upheld. 3. Development application number DA-547/2018, as amended, for demolition of existing dwelling and construction of a dwelling, garage with attached studio and in-ground swimming pool be approved subject to conditions in Annexure 'B'. ………………………… S Bish Commissioner of the Court Annexure A (7.05 MB) Annexure B (318 KB) ********** 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: 04 December 2019