Habib v City of Canada Bay Council [2020] NSWLEC 1554

Land and Environment Court New South Wales

Medium Neutral Citation: Habib v City of Canada Bay Council [2020] NSWLEC 1554 Hearing dates: Conciliation Conference on 5 November 2020 Date of orders: 11 November 2020 Decision date: 11 November 2020 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) Leave is granted for the applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development consent is granted to DA2020/004 for the demolition of existing structures and construction of a two-storey dwelling house with basement parking and swimming pool at 3 Elphinstone St, Cabarita subject to the conditions of consent in an Annexure A. Catchwords: DEVELOPMENT APPLICATION – dwelling house – conciliation conference – agreement between parties Legislation Cited: Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) The City of Canada Bay Development Control Plan Category: Principal judgment Parties: Michael Habib (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: S Kaoutarani (Applicant) C Sorenson (Respondent)

Solicitors: Project Lawyers (Applicant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2020/199003 Publication restriction: Nil

Judgment 1. This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2020/0004. The application sought consent for the demolition of an existing structures at No 3 Elphinstone Street, Cabarita and construction of a two-storey dwelling house with basement parking and swimming pool. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 November 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. No site view was undertaken. 4. Prior to the conciliation conference, the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council's Statement of Facts and Contentions filed on 7 August 2020. 5. The Council submits the amended plans reduce the height of the southern wall and increase setbacks; provide additional recessing and lowered the height of roof parapets to improve solar access to the adjacent property, No 1 Elphinstone Street so that the living room of that property will now receive solar access in accordance with the provisions of The City of Canada Bay Development Control Plan (DCP); increased the amount of landscaped area on the site to comply with the DCP provisions and amended the design of the building to address amenity concerns. 6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, the Parties agree, and I am satisfied, Canada Bay Local Environmental Plan 2013 (LEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal is permissible with consent. 9. The amended plans are compliant with the development standards for Height of Buildings (cl 4.3) and Floor Space Ratio (cl 4.4) of the LEP. 10. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation area. It is not flood prone nor subject to bushfire hazard. 11. The Council has not identified any contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land. 12. The conditions of consent require compliance with the BASIX Certificate issued for the proposal and lodged with the Council. 13. There are no draft planning proposals that apply to the land. 14. The evidence of the Council is that the development is consistent with the provisions and objectives of its DCP and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission. 15. There are no planning agreements or draft agreements that apply to the land nor any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent. 16. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed. 17. Having regard to the council's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of residents made in submissions to the council and in particular in regard to solar access. It is the council's opinion that the development will not adversely affect views from adjoining properties, and I must accept this submission in at the absence of a site view. Accordingly, I am satisfied that the proposal is in the public interest. 18. 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.

Orders 1. The Court orders that: 1. Leave is granted for the applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A. 2. The appeal is upheld. 3. Development consent is granted to DA2020/0004 for the demolition of existing structures and construction of a two-storey dwelling house with basement parking and swimming pool at 3 Elphinstone St, Cabarita subject to the conditions of consent in an Annexure A.

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Sue Morris

Acting Commissioner of the Court Annexure A (381149, pdf) Plans (2436188, pdf)

********** 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: 11 November 2020