Petrou v Cumberland Council [2024] NSWLEC 1343 (21 June 2024)

Last Updated: 24 June 2024

Land and Environment Court New South Wales

Case Name:	Petrou v Cumberland Council
Medium Neutral Citation:	[2024] NSWLEC 1343
Hearing Date(s):	Conciliation conference on 3 and 18 June 2024
Date of Orders:	21 June 2024
Decision Date:	21 June 2024
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development Application DA2023/0554 for the demolition of existing structures and the construction of an attached dual occupancy (being Stage 1) and the subsequent Torrens title subdivision of the dwellings for the end purpose of creating semi-detached dwellings (Stage 2) at Lot 32 in DP 228518, being No. 8 Aster Street, Greystanes, is determined by the grant of development consent, subject to the conditions set out in Annexure B. (3) The Applicants are to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in sum of $1,000 to be paid within 28 days.
Catchwords:	APPEAL – development application – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38 Land and Environment Court Act 1979, s 34 Cumberland Local Environmental Plan 2021, cll 2.6, 4.1A, 4.1B, 4.3, 6.2,6.4 6.7, 6.9, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
Category:	Principal judgment
Parties:	Savas Petrou (First Applicant) Angela Petrou (Second Applicant) Cumberland Council (Respondent)
Representation:	Counsel: P Vergotis (Solicitor) (Applicants) C McFadzean (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicants) Cumberland Council (Respondent)
File Number(s):	2023/449621
Publication Restriction:	Nil

JUDGMENT

1. COMMISSIONER: On 3 November 2023, a development application for the construction of a dual occupancy and its Torrens title subdivision at 8 Aster Street, Greystanes was refused by Cumberland Council. The applicants lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. The agreement is for development consent to be granted for development in two stages: first, the demolition of existing structures and the construction of a dual occupancy, and second, the subsequent Torrens title subdivision for the purpose of semi-detached dwellings.
2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 19 June 2024. I presided over the conciliation conference.
3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final agreement was signed and provided on 18 June 2024. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments were to increase the front setback, and provide updated stormwater concept plans.
4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The development the subject of the development consent agreed upon involves the carrying out of two developments, which the parties have agreed can be staged. The first development the subject of the consent is the erection of the dual occupancy on the site. The second development the subject of the consent is the subdivision of the site for the purpose of semi-detached dwellings, which aligns with the wording of a specific provision of the Cumberland Local Environmental Plan 2021 (CLEP), outlined in [6(3)] below. Section 4.12(2) of the EPA Act allows a single application to be made in respect of one or more types of development, and s 4.16(1) allows consent to be granted to such an application.
5. The signed agreement is supported by a Jurisdictional Statement that sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

(1) The site is zoned R2 Low Density Residential pursuant to the Cumberland Local Environmental Plan 2021 (CLEP), and both dual occupancies and semi-detached dwellings are permissible with consent in the zone.

(2) In relation to stage 1, the construction of the dual occupancy:

(a) The site meets the minimum lot size in cl 4.1B of the CLEP for the erection of a dual occupancy. Clause 4.1B provides as follows:

4.1B Minimum lot sizes for dual occupancies and semi-detached dwellings in Zones R2 and R3
...
(2) This clause applies to development for the purposes of the erection of a dual occupancy or semi-detached dwelling on land in the following zones—
(a) Zone R2 Low Density Residential,
(b) Zone R3 Medium Density Residential.
(3) Development consent must not be granted to development to which this clause applies unless the area of the lot is equal to or greater than 550 square metres.

(b) The proposed development complies with the height development standard established by cl 4.3 of the CLEP, and no floor space ratio development standard applies to the site.

(3) In relation to stage 2, the subdivision of land:

(a) The Torrens title subdivision is permissible with development consent, pursuant to cl 2.6 of the CLEP.

(b) The subdivision meets the description of a subdivision for the purposes of semi-detached dwellings, consistent with the exception to the minimum subdivision lot size in cl 4.1A(2)(a) of the CLEP. Clause 4.1A(2) and (3) provides:

(2) Development consent must not be granted for the subdivision of land to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to the land unless—
(a) the subdivision is for the purposes of dual occupancies or semi-detached dwellings, or
(b) there is an existing dual occupancy situated on the land that was lawfully erected in accordance with an environmental planning instrument before this Plan commenced and each resulting lot from the subdivision will contain a single dwelling.
(3) The minimum lot size for dual occupancies and semi-detached dwellings under clause 4.1B applies to development involving subdivision for the purposes of dual occupancies and semi-detached dwellings referred to in subclause (2)(a).

(c) The proposed subdivision is of a lot that complies with cl 4.1A(3), which requires that the minimum lot size of 550m2 applies to development involving subdivision for the purposes of semi-detached dwellings.

(4) The development application includes minor earthworks. Based on the Jurisdictional Statement, I have considered the matters set out in cl 6.2(3) of the CLEP.

(5) The site is serviced with water, electricity, telecommunications facilities and sewage disposal, and the proposed development includes the implementation of a stormwater on-site detention system. I can therefore be satisfied that the essential services required by cl 6.4 of the CLEP are available or will be available when required.

(6) Based on the stormwater management plans dated 23 April 2024, I am satisfied of the matters set out in cl 6.7(2) of the CLEP relating to the stormwater management.

(7) The site is identified as having “moderate salinity potential”, and therefore cl 6.9 of the CLEP applies. Based on the written note of the executive planner provided on 4 June 2024, I am satisfied that the proposed development is unlikely to have an adverse impact on salinity processes and that salinity is unlikely to have an impact on the development. I also accept the parties’ agreed position that no measures are required to avoid, minimise or mitigate the impacts of the development pursuant to cl 6.9(3).

(8) Clause 6.12 of the CLEP concerns urban heat and sets out mandatory considerations in cl 6.12(2). Based on the landscape plan and the Statement of Environmental Effects dated August 2023, I have considered the matters required to be considered by cl 6.12(2).

(9) The site falls within the Georges River Catchment, such that Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the development application. Based on the erosion and sediment control plan, the stormwater management plans and the distance of the proposed development from the nearest waterway, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas of waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

(10) Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

(11) Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 3 May 2024.

(12) The development application was notified between 28 September and 12 October 2023, and two submissions were received. I have considered the issues raised in those submissions.

7 Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
9. The Court notes:

(1) That the Respondent as the relevant consent authority has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicants amending the development application DA2023/0554 to rely on the plans and documents listed in the schedule at Annexure A.

10. The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2023/0554 for the demolition of existing structures and the construction of an attached dual occupancy (being Stage 1) and the subsequent Torrens title subdivision of the dwellings for the end purpose of creating semi-detached dwellings (Stage 2) at Lot 32 in DP 228518, being No. 8 Aster Street, Greystanes, is determined by the grant of development consent, subject to the conditions set out in Annexure B.

(3) The Applicants are to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in sum of $1,000 to be paid within 28 days.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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Amendments

24 June 2024 - Deletion of the words "of the Act" in Para 4

Deletion of the word "size" in Para 6(3)(c)