Balyck v Waverley Council

[2021] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:

Balyck v Waverley Council [2021] NSWLEC 1440

Hearing dates:

Conciliation conference on 22 - 23 July 2021

Date of orders:

03 August 2021

Decision date:

03 August 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application no D-211/2020, as amended, for alterations and additions to the semi-detached dwelling at 87 Blair Street, North Bondi is approved subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to semi-detached dwelling – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.14, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000 cll 49, 55

Land and Environment Court Act 1979 ss 34, 34AA

State Environmental Planning Policy No 55— Remediation of Land cl 7

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

Waverley Local Environmental Plan 2012

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Paul Balyck (Applicant)
Waverley Council (Respondent)

Representation:

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

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

File Number(s):

2021/59625

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) by Mr Paul Balyck (“the Applicant”) against the Respondent’s refusal of development application D-211/2020. The development application seeks consent for alterations and additions to a semi-detached dwelling including internal reconfiguration, new first floor and attic addition, installation of solar panels and new swimming pool. The development is proposed at 87 Blair Street, North Bondi (Lot 2 DP 545995).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for mandatory conciliation on 22 July 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (“LEC Act”). Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. As part of the conciliation conference the Court heard evidence from members of the public in relation to the proposed development. In determining the development application, I have given consideration to these oral submissions, along with the written submission received during the assessment of the application.

4. 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, namely leave to be granted to amended plans and the grant of consent to the development application subject to conditions. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 July 2021.

5. As required by cl 55 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) the Applicant has lodged the amended plans arising from the conciliation process on the NSW planning portal. Further, the Respondent has given their agreement to the amendment of the development application. Finally, the Court has allowed the Applicant to file an amended application for development consent pursuant to s 8.15(3) of the EPA Act. My assessment and determination are of the development application as amended.

6. As the presiding Commissioner, I am satisfied that the decision 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). I have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Regulation, consent has been provided by the owners of the land the subject of the development application.

2. Pursuant to cl 7(1) of State Environmental Planning Policy No 55— Remediation of Land (“SEPP 55”), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The Respondent, as consent authority to the development application, has considered whether the Site is contaminated and is satisfied that the Site is suitable for the proposal, on account of it involving works to a residential property with a long history of residential use. The Court, as consent authority can be similarly satisfied. Further, I note that no change in use is proposed in this application.

3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. The Waverley Local Environmental Plan 2012 (“LEP 2012”) applies to the Site. Pursuant to LEP 2012 the Site is zoned R3 Medium Density Residential and development for the purposes of semi–detached dwellings is permissible in the zone. In determining the development application, I have had regard to the objectives of the R3 Medium Density Residential zone.

5. The proposed development complies with the height of buildings standard (cl 4.3 of LEP 2012) but seeks a variation to the floor space ratio (“FSR”) control applicable to the Site (cl 4.4A of LEP 2012). The parties agree that the applicable FSR is 0.884:1. Given the Site has an area of 203.2m² the permissible gross floor area is 179.02 m². The proposed gross floor area is 188.46m², being an exceedance of the control by 9.44m². The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Luxxe Design dated 22 July 2021. This request accords with the amended plans and seeks a variation to the FSR development standard. I reviewed the request and in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 Medium Density Residential zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

6. By reference to the LEP 2012 maps, cl 6.1: Acid Sulfate Soils and cl 6.3: Flood Planning do not apply to the subject site.

7. The proposed development includes excavation. In determining the development application, I have given consideration to the matters listed at cl 6.2: Earthworks.

8. The site is located adjacent the Blair Street Heritage Landscape Conservation Area. I am satisfied that the amended plans will not have a detrimental impact on the significance of the landscape conservation area.

9. The application was notified in accordance with the relevant development control plan and I am satisfied that the submissions have been considered.

7. As the parties’ decision, to uphold the appeal and grant conditional consent to the development application, 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development application no D-211/2020, as amended, for alterations and additions to the semi-detached dwelling at 87 Blair Street, North Bondi is approved subject to the conditions contained at Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (298180, pdf)

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Decision last updated: 03 August 2021