Andrews AV Pty Ltd v Waverley Council

[2024] NSWLEC 1598

Land and Environment Court

New South Wales

Medium Neutral Citation:

Andrews AV Pty Ltd v Waverley Council [2024] NSWLEC 1598

Hearing dates:

Conciliation Conference held on 31 July and 26 August 2024

Date of orders:

02 October 2024

Decision date:

02 October 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The Applicants are to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA-285/2023 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $18,800 within 28 days of these orders being made.

(2) The appeal is upheld.

(3) Development Application DA-285/2023 for the demolition of existing buildings and the construction of a new 4-storey residential flat building with basement parking, two private swimming pools and a communal swimming pool and landscaping works and consolidation of lots at 1-7 Andrews Avenue, Bondi and 26 Glen Street, Bondi NSW 2026 is determined by the grant of consent subject to conditions contained in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy Amendment (Housing) 2023

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4

Waverley Local Environmental Plan 2012, cll 4.3, 4.6, 6.1, 6.2, 6.14, 6.15

Category:

Principal judgment

Parties:

Andrews AV Pty Ltd (First Applicant)
MHN Design Union Pty Ltd (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/459429

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by Andrews AV Pty Ltd (first applicant) and MHN Design Union Pty Ltd (second applicant) against the deemed refusal of DA 285/2023. The development application was lodged with Waverley Council (the Respondent) on 12 October 2023.

2. The development application seeks development consent for demolition of existing buildings and the construction of a new 4-storey residential flat building with basement parking, two private swimming pools and a communal swimming pool and landscaping works. The proposed development is to take place at 1-7 Andrews Avenue and 26 Glen Street, Bondi NSW 2026 also known as:

1. Lot 1 in DP 797716 (1 Andrews Avenue);

2. Lot 1 in DP 1042187 (3 Andrews Avenue);

3. Lot 1 in DP 216695 (5 Andrews Avenue);

4. Lot 2 in DP 216695 (7 Andrews Avenue); and

5. Lot 1 in DP 552406 and Lot 1796 in DP 822255 (26 Glen Street).

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference commenced on 31 July 2024.

4. At the conciliation conference, the parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to agreed outcomes and agreed conditions.

5. The amendments included reducing the bulk and scale of the building form as well as reducing the required excavation. Amendments to the application also included adjusting the form of the development to take into account streetscape issues and modification of the landscape setting of the proposed development.

6. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court to the agreement of the parties. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Waverley Local Environmental Plan 2012 (WLEP 2012), the subject site is zoned R3 Medium Density Residential. In determining the development application, regard has been given to the objectives of the zone.

2. The Amended Plans are supported by a written request, to vary the Height of Buildings requirements in cl 4.3 of the WLEP 2012, prepared by GSA Planning dated August 2024 (Revision B). The WLEP 2012 permits a maximum building height of 12.5m. The Amended Plans propose a maximum overall height of 13.60m at the southern portion of roof which relates to an existing change in topography.

3. The parties agree that the Court can be satisfied that the written request, to vary the development standard relating to Height of Buildings, addresses all relevant requirements in cl 4.6 of the WLEP 2012 including those provisions at cl 4.6(3) and 4.6(4). The parties agree, amongst other outcomes, that the height breach allows for a development outcome that preserves impacts on view, reduces overshadowing, reduces loss of privacy and reduces visual intrusion to adjoining and nearby properties. The parties have demonstrated to the Court, and I accept, that the relevant matters relating to an assessment against the objectives of the development standard and the objectives of the zone have been appropriately considered.

4. The parties have also demonstrated consideration against relevant environmental planning grounds. The parties have supported the variation, in part, based the following outcomes:

1. compatibility with the desired future character of the area;

2. compliance with built form controls;

3. compliant floor to ceiling heights;

4. the provision of internal accessibility;

5. addresses the topography of the site; and

6. there are no unacceptable environmental amenity impacts.

5. The Court is satisfied that the parties have given the required considerations to the written request to vary the development standard and the decision to uphold the variation is a decision that the Court could have made.

6. The application was placed on public notification for a period of 21 days from 27 October 2023 to 17 November 2023. A total 24 submissions were received from the public during the notification period. The parties have had regard to those submissions. The parties heard submissions from 7 residents at the commencement of the matter. This included site visits to a number of locations in and around the site. The Council undertook a further notification period for 7 days between 14 August and 20 August 2024. Further submissions were received and considered by the parties.

7. In accordance with cl 6.1 of WLEP 2012, the parties have considered the matters relating to acid sulfate soils. The parties agree, and I accept, that, due to the site characteristics and location, no acid sulfate soils management plan or preliminary assessment is required.

8. The requirements of cl 6.2 Earthworks of WLEP 2012 have been considered by the parties. The Applicants obtained an expert Geotechnical Investigation Report, prepared by JK Geotechnics dated 30 May 2023, which was considered by the parties. The parties agree, and I accept, that the required matters for earthworks have been considered and, either addressed by these reports, and/or covered by the proposed conditions annexed to this judgment.

9. The requirements of cl 6.14 of WLEP 2012 regarding waste have been considered by the parties including a review of the operational waste management report prepared by Elephants Foot dated 8 May 2024. The parties are satisfied, and I concur, that waste issues have been considered.

10. The requirements of cl 6.15 of WLEP 2012 regarding Stormwater must be satisfied. The Applicants have prepared Stormwater Plans by Erbas which respond to the matters raised in the statement of facts and contentions (SOFAC) and reflect the Amended Plans. The parties agree that the stormwater plans are adequate, result in a beneficial stormwater outcome for the site and satisfy those matters in cl 6.15(3) of the WLEP 2012. I am therefore satisfied that the stormwater issues have been appropriately considered.

11. A BASIX Certificate accompanies the development application to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (Certificate Number certificate No.1411135M_02 dated 16 August 2024).

12. As required by State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP), consideration has been given as to the sites coastal location and whether the site is contaminated. The parties agree that the site contains an existing residential development and has been continuously used for residential purposes. A Preliminary Site Investigation was prepared by EI Australia dated 5 April 2024 which concluded that the site is suitable for the purpose of the proposed development subject to recommendations. As such, the parties consider that the chance of contamination is minor and that the issues of contamination have been adequately addressed.

13. As required by State Environmental Planning Policy Biodiversity and Conservation) 2021 (BC SEPP), the parties have considered the vegetation issues. The parties agree that the landscape plan proposed adequate tree replacement and that the proposed tree planting is adequately documented in the overall landscape solution. The parties agree there is some clearing of trees but also agree that the removal of the vegetation is acceptable and consistent with the relevant sections of the Waverley Development Control Plan.

14. The provisions of State Environmental Planning Policy Amendment (Housing) 2023 are applicable to the application. The result is that, despite the lodgement date of this application being prior to the 14 December 2023 commencement date, the amendments made to State Environmental Planning Policy (Housing) 2021 (Housing SEPP) apply to the application. The development application, as amended by the Amended Plans, is supported by a Design Verification Statement prepared by MHND Union dated 8 August 2024. The parties agree that the Amended Plans are consistent with the provisions of the Housing SEPP and the required design considerations and that the Design Verification Statement, as referred to above, is prepared in compliance with the Environmental Planning and Assessment Regulations 2021. As a result, I am satisfied that the required considerations, in respect to the Housing SEPP and apartment design, have been undertaken.

9. 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’ agreement. 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 the EPA Act. The following orders give effect to the agreement reached by the parties.

10. The Court notes that:

1. The Respondent, Waverley Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicants amending Development Application No. DA-285/2023, to rely on the documents as outlined in Annexure A to this judgment.

Orders

11. The Court orders that:

1. The Applicants are to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA-285/2023 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $18,800 within 28 days of these orders being made.

2. The appeal is upheld.

3. Development Application DA-285/2023 for the demolition of existing buildings and the construction of a new 4-storey residential flat building with basement parking, two private swimming pools and a communal swimming pool and landscaping works and consolidation of lots at 1-7 Andrews Avenue, Bondi and 26 Glen Street, Bondi NSW 2026 is determined by the grant of consent subject to conditions contained in Annexure B.

S Harding

Acting Commissioner of the Court

Annexure A 

Annexure B

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Decision last updated: 02 October 2024