Benima Pty Ltd ATF Ben Harkham Family Trust v Waverley Council

[2024] NSWLEC 1012

Land and Environment Court

New South Wales

Medium Neutral Citation:

Benima Pty Ltd ATF Ben Harkham Family Trust v Waverley Council [2024] NSWLEC 1012

Hearing dates:

Conciliation Conference on 1 November 2023

Date of orders:

18 January 2024

Decision date:

18 January 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-72/2022 for demolition of the existing structures and construction of a new residential flat building comprising of 11 apartments (including affordable housing units) and associated landscaping works at 79 Anglesea Street, Bondi, subject to conditions contained in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.11, 8.14

Environmental Planning and Assessment Regulation 2021, s 29

Land and Environment Court Act 1979, ss 17, 34

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

State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18, 19, 21; Div 2 s 25

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy Amendment (Housing) 2023

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, cll 4, 28, 30

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 6.2

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Benima Pty Ltd ATF Ben Harkham Family Trust (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
B Harkham (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2022/294727

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-72/2022) (Development Application). The Development Application sought consent for the demolition of the existing dwelling and structures and construction of a five-storey residential flat building including the provision of infill affordable housing on land identified as Lot 1 in Deposited Plan 900572, known as 79 Anglesea Street, Bondi (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application was lodged with the respondent on 1 March 2022.

4. On 9 June 2022 and 14 July 2022, the respondent requested further information and/or amended plans from the applicant. Further information was provided by the applicant on 28 June 2022 and 2 and 5 September 2022, respectively.

5. On 4 October 2022, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 23 March 2023, the matter was listed for hearing.

7. On 7 August 2023, the applicant lodged a Notice of Motion seeking leave to rely on amended plans and documents following joint conferencing between the parties’ experts (Amended Development Application). Leave was granted by the Court on 15 August 2023.

8. The key changes incorporated in the Amended Development Application are as follows:

1. increased setbacks,

2. additional details to demonstrate the retention of existing walls and pier on the boundary in the north-eastern corner;

3. apartments 3 and 4 on level 1 combined into a single apartment;

4. removal of roof structure over the driveway;

5. apartments 9 and 10 on level 3 combined into a single apartment;

6. lowering of the whole building by 700mm;

7. amendments to external finishes to be brick finish instead of partly rendered; and

8. landscaping amended to reflect amended architectural plans.

9. Prior to the hearing, the parties reached agreement and requested that the matter be listed for a s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 1 November 2023, following which the hearing was vacated. I presided over the conciliation conference.

10. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed s 34 agreement is supported by an agreed jurisdictional statement.

11. 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.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

13. The applicant is the registered proprietor of the Site and provided consent to the Development Application when it was lodged with the respondent.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. I accept the parties’ submission that the requirements of s 4.6 of the RH SEPP have been considered and the Site is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Site’s longstanding history of residential use with no known history of potentially contaminating uses or events.

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

16. As the development application that is the subject of these proceedings was submitted on the NSW planning portal and not finally determined before 1 October 2023, the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies to the Amended Development Application.

17. In compliance with the relevant requirements under the BASIX SEPP, the applicant has obtained a BASIX certificate (Certificate No. 1273798M_02 dated 4 May 2023) prepared by EPS.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

18. As the development application the subject of these proceedings was submitted on the NSW planning portal and not finally determined before the commencement of State Environmental Planning Policy Amendment (Housing) 2023 (Housing SEPP Amendment), State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the Amended Development Application.

19. In accordance with cl 28 of SEPP 65, I am satisfied that:

1. advice from the design review panel has been obtained and considered (with this advice generally resulting in the Amended Development Application);

2. the design quality principles have been considered; and

3. the Apartment Design Guide (ADG) has been considered, in relation to the proposed development.

20. To this end, the development application as lodged with the respondent, was accompanied by a design verification statement prepared by a qualified designer pursuant to s 29 of the Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Housing) 2021

21. As the development application the subject of these proceedings was submitted on the NSW planning portal and not finally determined before the commencement of the Housing SEPP Amendment, State Environmental Planning Policy (Housing) 2021 (Housing SEPP) continues to apply to the Amended Development Application unamended by the Housing SEPP Amendment.

22. The parties agree that the Housing SEPP applies to the Amended Development Application as the proposed development meets the requirements of s 16 of Div 1 of the Housing SEPP, including that at least 20% of the gross floor area of the building resulting from the proposed development will be used for the purposes of affordable housing.

23. The Amended Development Application seeks the benefit of a floor space ratio (FSR) bonus under s 17(1)(a)(ii) and s 17(2) of Div 1 of the Housing SEPP which relevantly provides:

(1) The maximum floor space ratio for development to which this Division applies is the maximum permissible floor space ratio for residential accommodation on the land plus an additional floor space ratio of –

(a) if the maximum permissible floor space ratio is 2.5:1 or less -

…

(ii) if less than 50% of the gross floor area of the building will be used for affordable housing – Y:1, where:

AH is the percentage of the gross floor area of the building that is used for affordable housing.

Y = AH (divided by) 100

…

(2) The additional floor space ratio must be used for the purposes of affordable housing.

24. Accordingly, the additional FSR permitted is in accordance with the formula in s 17(1)(a)(ii). The parties agree that as 44% of the proposed development is to be used for affordable housing, and the permissible FSR for the Site is 0.9:1 under the Waverley Local Environmental Plan 2012 (WLEP), the FSR permitted for the Site under s 17(1)(a)(ii) of the Housing SEPP is 1.34:1, equating to five units.

25. Section 18 of the Housing SEPP sets out non-discretionary development standards for the purposes of in-fill affordable housing that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. The parties agree that all of the non-discretionary standards set out in s 18 are complied with, with the exception of s 18(2)(a) (minimum site area) and (e) (direct solar access).

26. The parties had differing views as to whether a cl 4.6 written request under the WLEP was legally required to support a non-compliance with s 18 of the Housing SEPP. For abundance of caution, the applicant prepared two cl 4.6 written requests pursuant to the WLEP to address the non-compliances with s 18(2)(a) and (e) of the Housing SEPP (referred to in this judgment as “Site Area Request” and “Solar Access Request”, respectively).

27. Section 18(2)(a) prescribes a minimum site area of 450m². As the Site is 437m², the proposed development does not comply with this standard. However, the parties agree that the shortfall should not warrant refusal of consent in this case for the reasons set out in the Site Area Request accompanying the application.

28. Section 18 of the Housing SEPP sets out matters which, if complied with, prevent the consent authority from requiring more onerous standards for those matters.

29. Having reviewed the Site Area Request, I am satisfied that the proposed 2.97% non-compliance will not have a detrimental impact on adjoining neighbours, the occupants of the development or the streetscape and desired future character of the area, and that development consent should not be withheld on this ground.

30. In respect of the Site Area Request, I am satisfied that:

1. the Site Area Request addresses the matters required to be addressed by cl 4.6(3) of the WLEP;

2. the proposed development will be in the public interest because it is consistent with the objectives of the Housing SEPP (there being no specific objectives for this standard) and the R3 medium density residential zone, for the reasons set out in the Site Area Request; and

3. for the purposes of cl 4.6(5) of the WLEP, the contravention of the development standard does not raise any matter of significance for State or regional environmental planning and there is no material public benefit of maintaining the development standard. Therefore, I find no grounds on which the Court should not uphold the Site Area Request.

31. Section 18(2)(e) requires living rooms and private open space in at least 70% of dwellings to receive at least three hours of direct solar access between 9am and 3pm in mid-winter. The parties agree that although this standard is not met, the Solar Access Request accompanying the application similarly provides adequate justification for the variation.

32. Having reviewed the Solar Access Request, I am satisfied that the proposed non-compliance (of 8.5%) will not have a detrimental impact on the occupants of the development on the basis that the proposal otherwise provides:

1. compliant unit sizes, private open space, cross ventilation and room sizes; and

2. ADG compliant solar access (100% of living and private open space areas achieve 2 hours of solar access).

33. I am therefore satisfied that development consent should not be withheld on this ground.

34. In respect of the Solar Access Request, I am satisfied that:

1. the Solar Access Request addresses the matters required to be addressed by cl 4.6(3) of the WLEP;

2. the proposed development will be in the public interest because it is consistent with the objectives of the Housing SEPP (there being no specific objectives for this standard) and the R3 medium density residential zone, for the reasons set out in the Solar Access Request; and

3. for the purposes of cl 4.6(5) of the WLEP, the contravention of the development standard does not raise any matter of significance for State or regional environmental planning and there is no material public benefit of maintaining the development standard. Therefore, I find no grounds on which the Court should not uphold the Solar Access Request.

35. Section 19(3) of the Housing SEPP relevantly provides that consent must not be granted to development to which Div 1 applies, unless the consent authority has considered whether the design of the residential development is compatible with the desirable elements of the character of the local area. The parties agree that the proposed development is so compatible.

36. Section 21 of the Housing SEPP relevantly requires the consent authority to be satisfied that the affordable housing component of the development will be used for affordable housing for at least 15 years following the issue of an occupation certificate and that the affordable housing component will be managed by a registered community housing provider.

37. The parties agree that condition 4 of the agreed conditions of consent adequately addresses s 21 of the Housing SEPP. In determining the Amended Development Application, I am satisfied of the matters set out in s 21 of the Housing SEPP, having regard to condition 4 of the agreed conditions of consent.

Waverley Local Environmental Plan 2012

38. The Site is zoned R3 Medium Density Residential under the WLEP. Accordingly, development for the purpose of a residential flat building is permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maximise public transport patronage and encourage walking and cycling.

• To increase or preserve residential dwelling density.

• To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability.

• To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.

• To promote development that incorporates planning and design measures that reduce the urban heat island effect.

• To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

39. The Development Application was notified between 8 March and 4 April 2022. Six submissions were received in response to the notification of the proposal.  I am satisfied that the written submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

40. Pursuant to cl 4.3 of the WLEP, a maximum height development standard of 12.5m applies to the Site. The parties agree that the Amended Development Application complies with this standard.

41. Pursuant to cl 4.4 of the WLEP, a maximum FSR development standard of 0.9:1 applies to the Site. The parties agree that this control is complied with as the Amended Development Application has the benefit of the bonus under s 17 of the Housing SEPP, as set out above.

42. The Amended Development Application seeks consent for excavation and earthworks and the development application was accompanied by a Geotechnical Investigation Report prepared by STS Geotechnics dated January 2022 (Geotechnical Report). Clause 6.2(3) of the WLEP prescribes a number of mandatory matters that must be considered prior to the granting of development consent. In determining the Amended Development Application, I reviewed the Geotechnical Report and have considered the matters set out in cl 6.2(3) of the WLEP.

Conclusion

43. 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.

44. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

45. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-72/2022 for demolition of the existing structures and construction of a new residential flat building comprising of 11 apartments (including affordable housing units) and associated landscaping works at 79 Anglesea Street, Bondi, subject to conditions contained in Annexure A.

N Targett

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 January 2024