Bernatovic v Waverley Council

[2023] NSWLEC 1299

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bernatovic v Waverley Council [2023] NSWLEC 1299

Hearing dates:

Conciliation Conference 6 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application DA 212/2022, as amended during Land and Environment Court Proceedings No. 2022/369081, for demolition of the existing structures and construction of a part two, part three storey residential dwelling, including an integrated garage, swimming pool and associated landscaping at 11 Alexander Street, Tamarama, subject to the conditions of consent annexed hereto and marked “Annexure A”.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, cll 27, 37

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.4A, 5.10, 5.21, 6.1, 6.2,6.15

State Environmental Planning Policy No 55 – Remediation of Land 1998

State Environmental Planning Policy (Resilience and Hazards) 2021, s 2.12

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

Texts Cited:

Waverley Council Coastal Risk Management Policy 2012

Category:

Principal judgment

Parties:

Mario Bernatovic (Applicant)
Waverley Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/369081

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-212/2022 for the demolition of the existing dwelling and construction of a part two-storey part three-storey dwelling house (the Proposed Development) at 11 Alexander Street, Tamarama legally identified as Lot 13 in DP 10118 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6 June 2023. I presided over the conciliation conference.

3. 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 Court upholding the appeal and granting development consent to the development application subject to conditions.

4. The Development Application was lodged with the Respondent on 1 June 2022 and on 8 December 2022, the Applicant filed this Class 1 appeal against the deemed refusal of the Development Application.

5. On 23 January 2023, the Respondent filed and served its Statement of Facts and Contentions (SOFAC). In response to the matters raised in the SOFAC, the Applicant has amended the Proposed Development. The main changes to the Proposed Development are as follows:

1. garage setback brought back in line with building line of 7-9 Alexander St;

2. additional dimensions and Reduced Levels added to architectural plans;

3. storage equipment details added;

4. storage room, bin storage, plant equipment and cellar rearranged as a result of increased garage setback;

5. driveway reduced to single width at property boundary;

6. high level windows added to storage area to allow for ventilation and light;

7. balcony depth reduced to 2500mm with planter added for privacy;

8. fin protrusion to first floor reduced by 200mm;

9. balcony balustrade amended to metal slats;

10. front fence updated to match existing heights of neighbouring properties;

11. window heights reduced to bed 4 and ensuite; and

12. plant species proposed amended to ensure 58.8% of plantings consist of indigenous or local native plants as listed in Annexure B2-1 of Waverley Development Control Plan 2012.

6. The parties are satisfied that the Proposed Development, as amended, satisfactorily addresses the contentions in the SOFAC, subject to the imposition of conditions of consent.

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. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in an agreed Jurisdictional Statement which I have read and which I have considered and adopted as my reasons as to how the jurisdictional prerequisites have been satisfied as follows.

10. The parties agree that the Amended Application satisfies all applicable provisions of the Waverley Local Environmental Plan 2012 (WLEP) and, where required, this satisfaction is supported through the imposition of conditions of consent.

11. The Development Application was made by the Applicant, the owner and resident of the Site.

12. The site is zoned R3 Medium Density Residential and the Proposed development is permissible with consent.

13. The Proposed Development seeks consent for demolition, pursuant to cl 2.7 of the WLEP. The parties have considered the following documents detailing the process of demolition and management of operational waste materials:

1. Site Waste and Recycling Management Plan Checklist prepared by BKA Architecture dated May 2022; and

2. Waste Management Plan prepared by BKA Architecture dated 20 May 2022.

14. The Proposed Development proposes a maximum building height of 9.2m resulting in a compliant development with the 9.5m maximum height of building development standard pursuant to cl 4.3 of the WLEP. I have had regard to architectural drawings DA 200 Rev D and DA 300 Rev D filed on 6 June 2023, which depict the proposed height of building against the 9.5m development standard.

15. Clause 4.4A of the WLEP provides an exception to the cl 4.4 maximum Floor Space Ratio (FSR) of 0.6:1. Despite cl 4.4, cl 4.4A prescribes that development on lots with an area of between 100 square meters 550 square meters are prescribed a Floor Space Ratio of 0.61451:1. The Site has a land area of 445.9m², as evidenced in the Survey dated 30 November 2020 filed with the Class 1 Application. The Proposed Development proposes an FSR of 0.6144:1. Drawing DA 002 Rev B dated 19 May 2022, filed with the Class 1 Application, includes the FSR calculation in accordance with cl 4.4A of the WLEP which provides as follows:

4.4A   Exceptions to floor space ratio

Despite clause 4.4, the maximum floor space ratio for a dwelling house or dual occupancy on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential is as follows—

(a)  for lots with an area less than 100 square metres—1:1,

(b)  for lots with an area of 100 square metres to 550 square metres—[[(550 − lot area) × 0.0011] + 0.5]:1,

(c)  for lots with an area greater than 550 square metres—0.5:1.

16. The Site is not listed as a heritage item, nor is it located within a Heritage Conservation Area, pursuant to cl 5.10 of the WLEP.

17. The Site is not flood affected, pursuant to cl 5.21 of the WLEP. The Applicant’s Stormwater Plans prepared by Civil & Stormwater Engineering Services Pty Ltd dated 12 May 2022 detail the management and treatment of stormwater for the Site and these are included in the list of approved plans and documents in the Conditions of Consent.

18. Under cl 6.1 of the WLEP, the Site is identified on Acid Sulfate Soils as containing Class 5 acid sulfate soils. All of the land immediately surrounding the site is also classified as Class 5, but to the south-west (within 500 metres) there is a pocket of Class 4 acid sulfate soils land. The Proposed Development does not seek works which will likely lower the water table below 1 metre Australian Height Datum on this adjacent Class 4 land.

19. The Proposed Development includes earthworks for the lower ground floor and inground pool and I am satisfied that the Respondent has considered the matters listed in cl 6.2(3) of the WLEP. The Applicant has provided a Geotechnical Investigation Report prepared by EI Australia dated 6 April 2023 and filed 6 June 2023 (Geotechnical Report), which confirms the excavation is unlikely to cause a disruption on the soil stability or structural integrity of the neighbouring properties, including the boundary retaining walls. Further, no groundwater table is expected to be intersected. The parties are satisfied that the Proposed Development is not likely to have any detrimental effect on drainage patters or soil stability within the locality. The Geotechnical Report has also been included in the list of approved plans and documents in the Conditions of Consent and the Court notes consent conditions 11, 11A and 11B.

20. Pursuant to cl 6.15(3) of the WLEP, in deciding whether to grant development consent, the consent authority must be satisfied the development—

(a)  is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact.

21. The Proposed Development has been designed to avoid significant adverse impacts of stormwater runoff on adjoining properties and includes an on-site stormwater retention measure. Further, appropriate conditions of consent have been included to ensure compliance with this clause.

22. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to all of NSW and requires a BASIX Certificate to be submitted in accordance with the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) in specified circumstances. An amended BASIX Certificate, prepared by Aspire Sustainability Consulting Pty Ltd, No 1296810S_03 dated 5 June 2023 has been filed by the Applicant on 6 June 2023 to satisfy the requirement in s 27 of the EPA Regulation.

23. State Environmental Planning Policy No 55 – Remediation of Land 1998 (the SEPP No 55) has been transferred to Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience and Hazards SEPP). Chapter 4 of the Resilience and Hazards SEPP is concerned with whether land is contaminated, and whether the land can be made suitable in its contaminated state, or after further remediation for the purpose for which the development is proposed to be carried out. Historically, the Site has been used for residential purposes and a change in use is not proposed. The Statement of Environmental Effects prepared by DMPS dated March 2022 (SEE) concludes that the Site is suitable for the Proposed Development.

24. The Site is jointly mapped as ‘coastal use area’ within the meaning of Division 5 of Chapter 2 of the Resilience and Hazards SEPP and pursuant to s 2.12, development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land. The Applicant has prepared the following documentation to demonstrate the proposal is not likely to cause increased risk of coastal hazards on the site or other land:

1. stormwater plans prepared by Civil & Stormwater Engineering Services Pty Ltd dated 12 May 2022;

2. erosion and sediment plans prepared by Civil & Stormwater Engineering Services Pty Ltd dated 12 May 2022;

3. Geotechnical Report prepared by EI Australia dated 6 April 2023.

25. Additionally, the Waverley Council Coastal Risk Management Policy 2012 identifies and applies to properties as having potential coastal hazards within the locality. It is relevant that this Policy does not apply to the Site, as the Site is not identified under either the coastal inundation risk map or the geotechnical risk lot map.

26. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity and Conservation SEPP) commenced on 11 March 2022 and was amended on 21 November 2022. The relevant provisions for consideration of the Proposed Development are under Chapter 2 of the Biodiversity and Conservation SEPP relating to vegetation in non-rural areas.

27. An Arboricultural Impact Assessment prepared by Lee Hancock Consulting Arborist dated 15 December 2021 (Tab 4 of the Class 1 Application) recommends the removal of Tree 1 by an experienced and certified arborist due to its poor health and vigour and relationship to the Proposed Development. The Assessment confirms that the trees offsite on northern and southern boundaries shall not be impacted upon by the Proposed Development. Furthermore, the Assessment provides that replacement trees will compensate for any loss of amenity. The updated landscape plans prepared by Site Design Studios dated 23 May 2023 and filed 6 June 2023, confirm at least 50% of new vegetation will be indigenous or local native plans as appropriate to the existing habitat corridor.

28. The parties agree the Amended Application satisfies all of the applicable provisions of the Biodiversity and Conservation SEPP.

29. For the reasons set out above in this judgment, 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.

30. 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.

Notations:

31. The Court notes that:

1. That the Respondent, Waverley Council, as the relevant consent authority, has agreed, under cl 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-212/2022 to rely upon the documents as follows:

No	Document	Date
1.	Architectural Plans prepared by BKA Architecture	17 March 2023
2.	Landscape Plans prepared by Site Design Studios	23 May 2023
3.	Geotechnical Report prepared by EI Australia	6 April 2023
4.	• Updated BASIX Certificate prepared by Aspire Sustainability Consulting Pty Ltd; • Updated BASIX stamped plans; and • Updated NaTHERS Certificate.	5 June 2023

2. The Applicant filed the amending documents on 6 June 2023.

Orders:

32. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA‑212/2022, as amended during Land and Environment Court Proceedings No 2022/369081, for demolition of the existing structures and construction of a part two, part three storey residential dwelling, including an integrated garage, swimming pool and associated landscaping at 11 Alexander Street, Tamarama, subject to the conditions of consent annexed hereto and marked “Annexure A”.

E Espinosa

Commissioner of the Court

**********

Annexure A

Amendments

04 July 2023 - Pursuant to UCPR r 36.17, condition 7 of Annexure A is amended.

Decision last updated: 04 July 2023