Balvest Four Pty Ltd v Waverley Council

[2020] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:

Balvest Four Pty Ltd v Waverley Council [2020] NSWLEC 1530

Hearing dates:

Conciliation conference on 21 September 2020 and 14 October 2020

Date of orders:

03 November 2020

Decision date:

03 November 2020

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Leave is granted for the applicant to rely upon amended plans dated 29 September 2020 prepared by Raw Concept Designs and draft strata plan prepared by Philip D. Youdale referred to in Condition 1 of Annexure A.

(3) Modification Application DA-48/2020/B (as amended on 29 September 2020) for alterations and additions to an existing residential flat building comprising six (6) units, storage facilities and communal open space, and strata subdivision in relation to the land contained in Lot 1 Deposited Plan 510442 known as 29 MacPherson Street Waverley NSW, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

Catchwords:

MODIFICATION APPLICATION – refurbishment – alterations and additions to an existing residential flat building – jurisdictional preconditions to grant of consent – private open space and communal open space – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy 55—Remediation of Land

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

Statement Environmental Planning Policy 65—Design Quality of Residential Flat Apartment Development

Waverley Local Environmental Plan 2013

Texts Cited:

Apartment Design Guide

Waverley Council Notifications Policy

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Balvest Four Pty Limited (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/222324

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant has appealed Waverley Council’s (Council) refusal of Modification Application No. DA-48/2020/B (Modification) for alterations and additions to an existing residential flat building and strata subdivision into six (6) units on the land contained in Lot 1 Deposited Plan 510442 known as 29 MacPherson Street, Waverley, NSW (the Site).

1. The appeal is brought pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Modification was lodged with Council on 8 July 2020, and was refused by Council on 10 July 2020. The Modification appeal was filed in Court on 10 July 2020 within the time required s 8.10 of the EPA Act.

3. The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17 of the Land and Environment Court Act1979 (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings is pursuant to s 4.16 of the EPA Act.

5. The Modification is seeking to modify Development Consent No. DA-48/2020/A which approved alterations and additions to the existing residential flat building and strata subdivision into six (6) units (the original development).

6. The Site is rectangular in shape with northern (front) and southern (rear) boundaries measuring 16.14m and eastern and western (side) boundaries measuring 34.14m. The Site has an area of 550.90m² with a fall from the north (front) to the rear (south) of approximately 4m.

7. The Site currently contains a detached three storey residential flat building with communal open space at the rear. The locality is characterised by a variety of residential developments, including semi-detached and detached dwellings opposite the Site on MacPherson Street, and residential flat building of three to four storeys scale on the southern side of MacPherson Street. The Site’s residential flat building appears to have been built between prior to 1945.

2. The Site is zoned R3 Medium Density Residential under the Waverley Local Environmental Plan 2012 (WLEP).

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 21 September and 14 October 2020. I presided over the conciliation conference which began with an onsite inspection.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the modification and notification of the plans to address Council’s contentions as set out below:

1. The proposal was inconsistent with objectives (a), (b) and (d) set out in section 3.10 Communal Space and section 3.11 Private Open Space in Part C3 of the Waverley Development Control Plan 2012 (WDCP).

2. The proposal was inconsistent with objectives (a) (d) and (f) set out in section 3.20 Natural Ventilation in Part C3 of the WDCP.

3. The proposal was inconsistent with objectives (a) and (b) set out in section 3.18 Storage as the proposal did not provide four units with storage areas.

4. The proposal was not in the public interest because it did not provide adequate amenity to the occupants of the Site.

5. During the conciliation conference the parties agreed to amend the Modification plans, and those plans were subsequently amended by the applicant and notified by Council. There was one objection received by Council to the amended plans. The Council considered the objection. The amended plans included architectural plans, a landscape plan and a plan of strata subdivision. The amended plans addressed the contentions raised by Council by providing:

1. Private open space to each of the 6 units by including a deck giving amenity to the occupants, and to provide outdoor space to dry washing.

2. Communal open space towards the rear of the Site.

3. Remove part of the internal walls between the living and dining room areas to increase ventilation and amenity.

4. Include ceiling fans in the bedrooms to increase ventilation.

5. Include storage areas for each unit.

6. The amendments ensured that there will be adequate amenity to the occupants of each unit.

6. In accordance with the s 34 agreement dated 23 October 2020 I grant leave for the applicant to rely upon the amended plans.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to uphold the appeal, and grant consent to the Modification subject to the conditions of consent contained in Annexure “A” hereto

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. It is necessary for the Court to demonstrate that the jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Court noted that these jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The appeal was brought pursuant to section 8.9, and was made within the time required pursuant to section 8.10 of the EPA Act.

2. The Modification was lodged with the consent of the owners of the Site as evidenced on the Application form.

3. State Environmental Planning Policy 55—Remediation of Land applies to the Site. The Site has been used for residential purposes for many years with no prior land use recorded by Council. Accordingly, the Council report on the Modification concluded that “Site land contamination is considered unlikely and no further investigation is necessary”.

4. Statement Environmental Planning Policy 65—Design Quality of Residential Flat Apartment Development (SEPP 65) – the original development consent and subject Modification relate to an existing residential flat building. The Modification retains the same number of apartments within the same building. The Modification relates to the refurbishment of the existing building. As the Modification does not result in the substantial redevelopment or refurbishment of the flat building SEPP 65 and the Apartment Design Guide are not applicable.

5. State Environmental Planning Policy (Affordable Rental Housing) 2009 – (Affordable Housing SEPP) – the original development application was subject to the provision of the Affordable Housing SEPP and was conditioned accordingly.

6. In accordance with the provisions of the State Environmental Planning Policy (Building & Sustainability Index: BASIX) 2004 updated BASIX Certificates dated 24 October 2020 were provided for each unit being Unit 1 no. A378498_02; Unit 2 no. A378508_2; Unit 3 no. A378509_03; Unit 4 no. A378410_03; Unit 5 no. A378511_03 and Unit 6 no. A378512_02.

7. Development of the Site is otherwise controlled by the WLEP. The Modification does not alter the development parameters that arise for assessment under the WLEP being lot size, height, land use or floor space ratio.

8. The Site is zoned R3 – Medium Density Residential under WLEP. The development remains permissible in the zone.

9. Notification and public submissions. The original development application was notified in accordance with Council’s Notifications Policy. The Modification was not required to be notified, in accordance with the WDCP, Part A – Advertising and Notification. The Modification’s amended plans were re-notified in accordance with Council’s Notification Policy. The Council received one (1) submission as a result of the re-notification. The Council has considered the submission.

10. The parties have agreed to Conditions of Consent, as attached as Annexure “A” hereto.

9. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. 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.

11. The Court orders:

1. The appeal is upheld.

2. Leave is granted for the applicant to rely upon amended plans dated 29 September 2020 prepared by Raw Concept Designs and draft strata plan prepared by Philip D. Youdale referred to in Condition 1 of Annexure A.

3. Modification Application DA-48/2020/B (as amended on 29 September 2020) for alterations and additions to an existing residential flat building comprising six (6) units, storage facilities and communal open space, and strata subdivision in relation to the land contained in Lot 1 Deposited Plan 510442 known as 29 MacPherson Street Waverley NSW, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (217969, pdf)

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Decision last updated: 03 November 2020