Meehan v Northern Beaches Council [2023] NSWLEC 1728 (6 December 2023)

Last Updated: 6 December 2023

Land and Environment Court New South Wales

Case Name:	Meehan v Northern Beaches Council
Medium Neutral Citation:	[2023] NSWLEC 1728
Hearing Date(s):	Conciliation Conference on 5 and 13 October 2023
Date of Orders:	06 December 2023
Decision Date:	6 December 2023
Jurisdiction:	Class 1
Before:	Byrne AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA2022/1694, as amended, for alterations and additions to a dwelling house on land at 995 Barrenjoey Road, Palm Beach, NSW 2108, known as Lot 61 in DP13620 and Lot 1 in DP456145, subject to the conditions at Annexure A.
Catchwords:	DEVELOPMENT APPEAL – alterations and additions – dwelling house – waterfront land - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7, 10.3 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, ss 17, 34, 34AA, 39 Pittwater Local Environmental Plan 2014, cll 4.3, 4.6, 7.1, 7.2, 7.6, 7.7, 7.8, 7.10 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2,4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119
Texts Cited:	Northern Beaches Council’s Community Participation Plan 2019 NSW Rural Fire Service, Planning For Bush Fire Protection, 2019 Pittwater 21 Development Control Plan
Category:	Principal judgment
Parties:	Christopher Meehan (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) H Grace (Respondent) Solicitors: Macpherson Kelley (Applicant) Northern Beaches Council (Respondent)
File Number(s):	2023/184090
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by the Northern Beaches Council (the Council) of DA2022/1694 (the Development Application) for alterations and additions to a dwelling house (the Proposed Development) on land at 995 Barrenjoey Road, Palm Beach, NSW 2108, known as Lot 61 in DP13620 and Lot 1 in DP456145 (the Site).
2. The Site slopes steeply from Barrenjoey Road down to the eastern shore of Pittwater with a boatshed, swimming pool and jetty on the water frontage.
3. 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 site and at Court. I presided over the conciliation conference.
4. At the conciliation conference, the parties reached an agreement under s 34(3) LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties.
5. The parties’ experts agreed that all contentions raised in the Council’s Statement of Facts and Contentions (SOFAC) were resolved by the preparation of:

(1) amended plans, which deleted the excavation and construction of the underground tunnel and lift shaft from the dwelling to the boatshed, and documents referred to at [29(1)] of this judgment, and

(2) agreed conditions of consent (Agreed Conditions).

6. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 Appeal and grant development consent to the works embodied in DA2022/1694, as amended, with conditions.
7. Section 34(3) of the LEC Act requires me to 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.
8. The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act and has the power to grant consent pursuant to s 4.16(1)(a) of the EPA Act. Pursuant to s 39(2) of the LEC Act, the Court has the functions and discretions of the Respondent as consent authority.

Jurisdictional matters

9. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement provided on 13 October 2023 (the Statement). The statutory planning controls that apply to the proposed development are listed in the Council’s Statement of Facts and Contentions.
10. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following matters that are relevant to the proposed development and the subject land.

Bush Fire Prone Land

11. The Site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The Site is constrained by vegetation classified as Category 1 Bushfire Vegetation.
12. A Bushfire Assessment Report accompanied the Class 1 Application which confirmed that the DA can comply with the Planning for Bush Fire Protection 2019 as required under s 4.14(1)(a) of the EPA Act and provides recommended mitigation measures in the construction.
13. Further, a Bushfire Risk Assessment Certificate accompanies the DA (before the Court in the Class 1 Application) which has been certified by Mr Scott Jarvis of Sydney Bushfire Consultants, who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment. It states that the DA conforms to the relevant specifications and requirements, subject to the recommendations in the Bushfire Assessment Report.

Pittwater Local Environmental Plan 2014 (Pittwater LEP)

14. The Site is zoned C4 Environmental Living under the Pittwater LEP. The proposed development, as amended, is permissible with consent in the C4 Environmental Living Zone.
15. The amended DA is consistent with the zone objectives. I note the Applicant’s Statement of Environmental Effects dated 19 September 2023 prepared by Gyde Consulting, filed with the Court as part of the Class 1 application sets out the Clause 4.6 Variation Request and the reasoning for upholding the Request which the Council accepts as part of the s 34 agreement.
16. I accept the parties’ analysis and conclusions in the Statement with respect to jurisdictional matters arising or otherwise under cll 7.1, 7.2; 7.6, 7.7, 7.8 and 7.10 of the Pittwater LEP.
17. Of particular relevance to the steep nature of the Site with water frontage to the eastern shore of Pittwater, I note the following analysis by the parties in the Statement with respect to the Pittwater LEP controls concerning Geotechnical Hazards and Foreshore Area.

“[39] Clause 7.7 (Geotechnical Hazards) applies to the Site. The Site is identified as “Geotechnical Hazard H1”. The Amended DA will appropriately manage waste water, stormwater and drainage across the land. The Stormwater Plans have been prepared (behind Tab 10 of the Class 1 Application) which identifies the proposed downpipes which are to be connected to the existing stormwater system. There is no expected increase to the impervious area and there is no expected impact on the water leaving the Site. The proposed landscaping will also allow for additional water absorption into the soil and reduce water runoff. A Preliminary Geotechnical Assessment (refer to Tab 17 of the Class 1 Application) and a Geotechnical Investigation dated 6 November 2022 have been prepared which concludes the Site has a generally low to medium landslide risk to property and an acceptable risk to life. These geotechnical assessments provide recommendations for good hillside development engineering to ensure that any geotechnical risk is properly managed and minimised. The recommendations have been incorporated into the proposed conditions of consent. The Geotechnical Investigation is accompanied by a certification from a suitably qualified geotechnical engineer to confirm the same. The Court can be satisfied of the matters in clause 7.7(4).

[40] Clause 7.8 (Foreshore Area) applies to the Site. The foreshore area is limited to the western portion of the Site at the pool level. The proposed works within the foreshore area of the Site is limited to the “grotto” area and minor alterations to the existing retaining wall and pool plant. The minor alterations to the pool plant will not result in any changes to the building footprint as the works are limited to the removal of the door and a new proposed window. The “grotto” works involve the demolition of an existing retaining wall and proposed lawn. The actual “grotto” is to be located such that the building footprint does not encroach into the foreshore area. In these circumstances, the Court can be satisfied of the matters in clause 7.8(3).”

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

18. Chapter 2 (Coastal Management) applies to the Site. The Site is identified within a Coastal Environment Area and Coastal Use Area. The parties are satisfied, and the Court accepts that the Amended DA will not have an adverse impact on the coastal environmental area and coastal use area, and it will not cause increased risk of coastal hazards on the Site or other land. An Estuarine Risk Management Report has been prepared to confirm the dwelling house is not at risk of coastal hazard. The Amended DA does not propose any works to the existing boatshed.
19. Chapter 4 (Remediation of Land) applies to the Site. Section 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated.
20. The Site has a historical and continuous residential use and is located within a residential locality. Based on historical records, it is unlikely that the Site would have been contaminated.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

21. Section 2.48 applies to the Site as Ausgrid underground cables are identified as being in the vicinity of the Site. Council must notify the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and take into consideration any response to the notice. Ausgrid provided a letter to Council confirming that it does not object to the DA. The proposed conditions include a requirement to comply with comments provided by Ausgrid.
22. Section 2.119 applies as the Site has a frontage to Barrenjoey Road, which is a classified road. There is an existing driveway off Barrenjoey Road to the existing garage to the dwelling to provide access to the Site. The proposed alterations and additions, when complete, will not increase the volume or frequency of vehicles using Barrenjoey Road. A Traffic Control Plan has been prepared to provide for safe traffic control measures along Barrenjoey Road during the construction of the works. On 1 December 2022, Transport for New South Wales (TfNSW) issued correspondence confirming that there are no anticipated changes to traffic flows as a result of the alterations and additions. The proposed conditions include a requirement to comply with a condition requested by TfNSW.

Public Participation

23. The DA was notified in accordance with the Respondent’s Community Consultation Plan between 21 October 2022 to 4 November 2022. One submission was received during the notification period.
24. In accordance with the Community Consultation Plan, the Amended DA was not renotified as the Council formed the opinion that the amendments would result in a lesser or reduction of environmental impacts.
25. The neighbour to the south made oral submissions on site in relation to landslip risk to their property as had occurred on a previous occasion. The proposed DA on the Site does not involve demolition of the existing building and Council was satisfied that the concerns of the neighbour were adequately met by the agreed conditions of consent.
26. A further submission was provided at the s 34 conciliation conference, which raised solar access concerns. The parties are satisfied that the objectives and controls provided in clause C1.4 of the Pittwater 21 Development Control Plan have been satisfied.

Conclusion

27. For these reasons, based on the evidence before me, my observations on site and submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.
28. 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. 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.

Notations

29. The Court notes the following:

(1) The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, an amendment to Development Application No. DA2022/1694 in accordance with the following amended plans and documents (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Dwg No DA000 Revision C	Site Analysis Plan	Alexander & Co	6 October 2023
	Dwg No DA001 Revision B	Existing/Demotion – Site Plan		6 October 2023
	Dwg No DA002 Revision C	Proposed Site Plan		6 October 2023
	Dwg No DA100 Revision C	Existing / Demolition – Pool Level		6 October 2023
	Dwg No DA101 Revision B	Existing / Demolition – Lower Level		6 October 2023
	Dwg No DA102 Revision B	Existing / Demolition – Middle Level		6 October 2023
	Dwg No DA103 Revision B	Existing / Demolition – Entry Level		6 October 2023
	Dwg No DA104 Revision B	Existing / Demolition – Street Level		6 October 2023
	Dwg No DA105 Revision B	Existing / Demolition - Roof		6 October 2023
	Dwg No DA110 Revision C	GA – Pool Level		6 October 2023
	Dwg No DA111 Revision C	GA – Lower Level		6 October 2023
	Dwg No DA112 Revision C	GA – Middle Level		6 October 2023
	Dwg No DA113 Revision C	GA – Entry Level		6 October 2023
	Dwg No DA114 Revision C	GA – Street Level		6 October 2023
	Dwg No DA115 Revision C	GA - Roof		6 October 2023
	Dwg No DA200 Revision B	Building Elevation - North		6 October 2023
	Dwg No DA201 Revision B	Building Elevation – East		6 October 2023
	Dwg No DA202 Revision C	Building Elevation – South		6 October 2023
	Dwg No DA203 Revision C	Building Elevation - West		6 October 2023
	Dwg No DA210 Revision B	Site Elevation – North & South		6 October 2023
	Dwg No DA211 Revision C	Site Elevation – East & West		6 October 2023
	Dwg No DA300 Revision C	Section A		6 October 2023
	Dwg No DA301 Revision C	Section B		6 October 2023
	Dwg No DA302 Revision C	Section C		6 October 2023
	Dwg No DA303 Revision B	Section Y		6 October 2023
	Dwg No DA304 Revision B	Section Z		6 October 2023
	Dwg No DA305 Revision A	Existing v Proposed – Section A		30 August 2023
	Dwg No DA306 Revision A	Existing v Proposed – Section B		30 August 2023
	Dwg No DA400 Revision C	Shadow Diagram 9am		6 October 2023
	Dwg No DA401 Revision C	Shadow Diagram 12pm		6 October 2023
	Dwg No DA402 Revision C	Shadow Diagram 3pm		6 October 2023
	Dwg No DA403 Revision A	Shadow Diagram 9am		30 August 2023
	Dwg No DA404 Revision A	Shadow Diagram 12pm		30 August 2023
	Dwg No DA405 Revision A	Shadow Diagram 3pm		30 August 2023
	Dwg No DA410 Revision C	Height Plan Mesh 10M		6 October 2023
	Dwg No DA411 Revision B	Height Plan Mesh 10M Breach Detail		6 October 2023
	Dwg No DA412 Revision C	Heigh Plane Mesh 8.5M		6 October 2023
	Dwg No DA413 Revision B	Height Plane Mesh 8.5M Breach Detail		6 October 2023
	Dwg No DA414 Revision C	Shear Wall Plan Mesh 7.2M		6 October 2023
	Dwg No DA420 Revision B	Material Palette		6 October 2023
	Dwg No DA421 Revision B	Street Visual		6 October 2023
	Dwg No DA422 Revision C	Water Front Visual		6 October 2023
	Dwg No DA430 Revision D	Proposed GFA Plans		6 October 2023
	Dwg No DA431 Revision A	Existing v Proposed Plans		30 August 2023
	Dwg No DA440 Revision B	Visual Impact Section		6 October 2023
	Dwg No DA450 Revision A	Axonometric – Existing		30 August 2023
	Dwg No DA451 Revision A	Axonometric – Proposed		30 August 2023
	Dwg No DA452 Revision A	Axonometric – North & East Comparison		30 August 2023
	Dwg No DA453 Revision A	Axonometric – West & South Comparison		30 August 2023
	Dwg No DA460 Revision A	Height Plane 8.5m – Existing v Proposed – North		30 August 2023
	Dwg No DA461 Revision A	Height Plane 8.5m – Existing v Proposed – South		30 August 2023
	Dwg No DA462 Revision A	Height Plane 8.5m – Existing v Proposed – East		30 August 2023
	Dwg No DA463 Revision A	Height Plane 8.5m – Existing v Proposed – West		30 August 2023
	Dwg No DA464 Revision A	Height Plane 10m – Existing v Proposed – North		30 August 2023
	Dwg No DA465 Revision A	Height Plane 10m – Existing v Proposed – South		30 August 2023
	Dwg No DA466 Revision A	Height Plane 10m – Existing v Proposed – East		30 August 2023
	Dwg No DA467 Revision A	Height Plane 10m – Existing v Proposed – West		30 August 2023
Reports / documents
2	Clause 4.6 Variation Request		Gyde Consulting	19 September 2023
3	Visual Impact Assessment		Alexander & Co	30 August 2023
4	Geotechnical Investigation		Asset GeoEnviro	6 November 2022

(2) The Applicant filed the Amended Development Application with the Court on 13 October 2023.

(3) The written request prepared by Gyde Consulting, dated 19 September 2023, made pursuant to cl 4.6 of Pittwater Local Environmental Plan 2014, seeking to vary the height of buildings standard in cl 4.3(2) of Pittwater Local Environmental Plan 2014, is upheld.

Orders

30. The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA2022/1694, as amended, for alterations and additions to a dwelling house on land at 995 Barrenjoey Road, Palm Beach, NSW 2108, known as Lot 61 in DP13620 and Lot 1 in DP456145, subject to the conditions at Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

**********