Af1 Services Pty Ltd v Waverley Council

[2019] NSWLEC 1515

Land and Environment Court

New South Wales

Medium Neutral Citation:	AF1 Services Pty Ltd v Waverley Council [2019] NSWLEC 1515
Hearing dates:	Conciliation conference on 20 August; 18 September 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	AF1 Services Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: N Hammond (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/377420
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for the demolition of an existing building and the construction of a three-storey residential flat building with car parking and strata subdivision at 59 Brighton Boulevard, Bondi Beach. The appeal is lodged 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 20 August 2019 and 18 September 2019. I presided over the conciliation conference.

3. Following 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The agreement is supported by Annexure B to the agreement, entitled “Justification Statement”. The amended development application incorporates amendments that lower the finished floor levels of each floor of the building and increases the setbacks. The result is that the proposed development provides a predominant western side setback of 3m with an exception of the central component and a rear setback that has been increased by a further 2.5m from what was originally proposed.

4. 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:

• The development is for the purpose of a residential flat building, which is permissible with consent in the R3 Medium Density Residential Zone in which the site is located, pursuant to the Waverley Local Environmental Plan 2012 (“WLEP 2012”).

• The proposed development does not breach any of the development standards in the WLEP 2012 or in any other environmental planning instrument.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• The development application was accompanied by a statement by a qualified designer as referred to in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000.

5. 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)).

6. 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.

7. The Court orders that:

1. Leave is granted for the Applicant to rely on the following architectural plans prepared by BKH Architects:

1. Drawing No. A.001, Revision P6, dated 27 September 2019;

2. Drawing No. A.101, Revision P6, dated 27 September 2019;

3. Drawing No. A.102, Revision P6, dated 27 September 2019;

4. Drawing No. A.103, Revision P6, dated 27 September 2019;

5. Drawing No. A.104, Revision P6, dated 27 September 2019;

6. Drawing No. A.105, Revision P7, dated 16 October 2019;

7. Drawing No. A.106, Revision P6, dated 27 September 2019;

8. Drawing No. A.201, Revision P7, dated 16 October 2019;

9. Drawing No. A.202, Revision P7, dated 16 October 2019;

10. Drawing No. A.203, Revision P6, dated 27 September 2019;

11. Drawing No. A.204, Revision P6, dated 27 September 2019;

12. Drawing No. A.301, Revision P6, dated 27 September 2019;

13. Drawing No. A.302, Revision P6, dated 27 September 2019; and

14. Drawing No. A.700, Revision P6, dated 27 September 2019.

2. Leave is granted for the Applicant to rely on the Landscape plans (Revision D) prepared by Dangar Barin Smith dated 27 September 2019.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum $15,000 within 28 days of these orders.

4. The appeal is upheld.

5. Development Consent is granted to DA-402/2017 seeking demolition of existing building and construction of a three-storey residential flat building with car parking and strata subdivision, subject to the conditions in Annexure “A”.

…………………………

J Gray

Commissioner of the Court

Annexure A (346 KB)

Landscape Plans (346 KB)

Architectural plans (11.8 MB)

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Decision last updated: 29 October 2019