Attard v Waverley Council

[2023] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:

Attard v Waverley Council [2023] NSWLEC 1610

Hearing dates:

Conciliation conference held on 25 September 2023

Date of orders:

17 October 2023

Decision date:

17 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by Planning Ingenuity dated 1 September 2023 pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP 2012) to vary the floor space ratio development standard in clause 4.4 of the WLEP 2012 is upheld.

(2) The appeal is upheld.

(3) Development Application DA-251/2022, as amended, seeking demolition and construction of a part two/three storey dwelling with two car garage, new swimming pool and terrace on Lot 1 Deposited Plan 965138, also known as 395 Bronte Road, Bronte is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a new dwelling – breach in floor space ratio standard – written request for variation in development standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38

Land and Environment Court Act 1979, ss 34, 34AA

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Waverley Local Environmental Plan 2012, cll 2.3, 4.4, 4.4A, 4.6

Texts Cited:

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

George Attard (First Applicant)
Liana Attard (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
D Loether (Applicants)
S Patterson (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/139042

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA-251/2022 by Waverley Council (the Council) seeking demolition of existing structures, construction of a new part two/three storey dwelling, with a swimming pool and basement parking on Lot 1 Deposited Plan 965138, also known as 395 Bronte Road, Bronte (hereafter the site).

Background

2. Development Application DA-251/2022 (the DA) was lodged with Council on 20 June 2022, with five written submissions received during the notification period. After internal review, the DA was refused, with the determination made on 2 December 2022.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person. Two oral submissions from residents, relating to three adjoining residences were made at the start of the conciliation. The issues raised were consistent with the written submissions provided during the notification period.

5. The Council agreed for the applicant to amend the plans that support and amend the application, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the adjoining residents have been considered.

7. Pursuant to s 34(3)(a) of the LEC Act, I must 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. The parties' decision, pursuant to s 34(3)(b) involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA-251/2022, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Waverley Local Environmental Plan 2012 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone.

2. The amended application is supported by relevant plans and documents, and filed with the Court, that sufficiently address the relevant objectives, aims, standards and provisions of the WLEP.

3. The floor space ratio (FSR) development standard is described in cl 4.4 of the WLEP as being 0.5:1, although the site is entitled to an FSR exemption, pursuant to cl 4.4A. The maximum FSR applicable to the site is 0.558:1. The DA seeks a maximum FSR of 0.65:1, based on the calculation method adopted by Council. The applicant deems the FSR as being technically compliant. The amended application relies on a cl 4.6 written request, seeking a variation of the (non-compliant) FSR, pursuant to cl 4.6 of the WLEP.

4. With regards to the cl 4.6 written request, it explains that the non-compliance of the FSR standard seeking a variation of 16.8% does not result in a development that is incompatible with the character of the surrounding area, nor results in adverse amenity to adjoining properties, including solar access or view loss. The FSR variation as calculated will not perceptibly change the presentation of the new dwelling to the streetscape, because the non-compliance is generally related to the basement level and does not result in adverse bulk/scale impacts to adjoining properties.

5. The cl 4.6 written request notes that the existing building on the site has a basement that presents to the street, and the non-compliance in the FSR generally relates to the existing basement area.

6. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the WLEP and the (FSR) development standard objectives, described in cl 4.4.

7. The Court must be satisfied, to grant consent to the application, that the cl 4.6 request to vary the development standard addresses the requirements set out in cl 4.6 of the WLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request seeking variation of the FSR development standard sufficiently describes the environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R2), as well as the FSR (cl 4.4) standard. The breach in the development standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, future residents and generally relates to an existing building element.

8. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

9. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cl 4.4 development standard should be granted.

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

1. A BASIX Certificate (126098S_02) issued on 26 September 2023 is relevant to the proposed development, as amended, and filed with the Court.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as a residence and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience.

4. Waverley Development Control Plan 2012 (WDCP):

1. The relevant requirements of the WDCP are generally complied with based on the amended plans, supporting documents to the DA and the conditions of consent.

2. The original application was publicly notified in accordance with the WDCP, and the five submissions received have been considered in the Council’s merit assessment of the DA, and where appropriate, issues are addressed.

3. The Council agrees that the contentions that relate to the WDCP are resolved by amendments to the DA and the provision of documents that support the DA. The proposed development is assessed as not causing adverse visual impacts to adjoining properties or in the streetscape.

9. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application.

Grant of consent

10. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submission.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-251/2022 should be determined by the grant of consent, as it satisfies the relevant requirements of s 4.15(1) of the EPA Act.

13. As the parties' agreement 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.

14. The Court notes that:

1. The Waverley Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant to amend Development Application DA-251/2022, as described below:

1. Clause 4.6 Variation Statement (FSR) prepared by Planning Ingenuity, dated 1 September 2023;

2. Arbor Impact Assessment Addendum prepared by Smart Arbor Professional Consulting, dated 1 September 2023; and

3. Amended documents in the table below.

Description	Drawing No.	Prepared by	Date
Architectural Plans
Cover 2	C0.01	Chris Clout Design	1/09/2023
Basement	C1.0	Chris Clout Design	20/9/2023
Ground Floor	C1.1	Chris Clout Design	1/09/2023
Upper Floor	C1.2	Chris Clout Design	1/09/2023
Site Plan	C1.3	Chris Clout Design	1/09/2023
Elevations	C2.0	Chris Clout Design	1/09/2023
Elevations	C2.1	Chris Clout Design	1/09/2023
Elevations	C2.3	Chris Clout Design	1/09/2023
Section	C3.1	Chris Clout Design	1/09/2023
Section	C3.2	Chris Clout Design	1/09/2023
Section	C3.3	Chris Clout Design	1/09/2023
Section	C3.4	Chris Clout Design	1/09/2023
Section	C3.5	Chris Clout Design	1/09/2023
Overlooking Plans	C3.6	Chris Clout Design	1/09/2023
Sections – Overlooking	C3.7	Chris Clout Design	1/09/2023
FSR	C4.0	Chris Clout Design	1/09/2023
Landscaping/Areas	C5.0	Chris Clout Design	1/09/2023
Shadows – June 9AM	C6.0	Chris Clout Design	1/09/2023
Shadows – June 10AM, 11AM	C6.1	Chris Clout Design	1/09/2023
Shadows – June 12PM	C6.2	Chris Clout Design	1/09/2023
Shadows – June 1PM, 2PM	C6.3	Chris Clout Design	1/09/2023
Shadows – June 3pm	C6.4	Chris Clout Design	1/09/2023
Shadows - Dec 9AM, 12PM	C6.5	Chris Clout Design	1/09/2023
Shadows - Dec 3PM	C6.6	Chris Clout Design	1/09/2023
Site Analysis Plan	C10.0	Chris Clout Design	1/09/2023
Ceiling Fans – BASIX	C10.1	Chris Clout Design	1/09/2023
Existing Home Plan	C10.2	Chris Clout Design	1/09/2023
Existing Basement Plan	C10.3	Chris Clout Design	1/09/2023
Window & Door Schedule	C11.0	Chris Clout Design	1/09/2023
Streetscape Analysis	C12.0	Chris Clout Design	1/09/2023
Streetscape Analysis	C12.1	Chris Clout Design	1/09/2023
Montages	C13.0	Chris Clout Design	1/09/2023

2. The applicant has filed the plans that amend Development Application DA-251/2022 with the Court on 25 September 2023. The amended BASIX Certificate that relates to the amended development was filed with the Court on 28 September 2023.

15. The Court orders that:

1. The Applicant’s written request prepared by Planning Ingenuity dated 1 September 2023 pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP 2012) to vary the floor space ratio development standard in clause 4.4 of the WLEP 2012 is upheld.

2. The appeal is upheld.

3. Development Application DA-251/2022, as amended, seeking demolition and construction of a part two/three storey dwelling with two car garage, new swimming pool and terrace on Lot 1 Deposited Plan 965138, also known as 395 Bronte Road, Bronte is determined by the grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

23.139042 (Annexure A) 

**********

Decision last updated: 17 October 2023