Bondi Beach Ventures Pty Ltd v Waverley Council

[2019] NSWLEC 1602

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bondi Beach Ventures Pty Ltd v Waverley Council [2019] NSWLEC 1602
Hearing dates:	Conciliation conference on 15 November 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $18,809.00 within 28 days of these orders. (3) The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by Planning Ingenuity (contained at Annexure B), seeking to justify the contravention of the height of buildings development standard in clause 4.3 of WLEP is upheld. (4) The appeal is upheld. (5) Development Consent be granted to DA-361/2018 seeking consent to demolish the existing structures and to construct a five storey shop top housing development over basement level parking at the property at 134-138 Campbell Parade, Bondi Beach, subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55 – Remediation of Land Waverley Local Environmental Plan 2012 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012
Texts Cited:	Waverley Development Control Plan 2012.
Category:	Principal judgment
Parties:	Bondi Beach Ventures Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: G Baron (Solicitor) (Applicant) J Ede (Solicitor) (Respondent)   Solicitors: Baron and Associates Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/382790
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 the applicant against the deemed refusal of its development application DA-361/2018. The development application seeks approval for the demolition of existing structures (with the façade facing Campbell Parade part retained, altered and upgraded), and to construct a five storey shop top housing development over basement level parking. The development is proposed at 134-138 Campbell Parade, Bondi Beach (Lot 1 DP 518817).

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 was held on 21 August 2019. At the request of the parties a further conciliation conference was held on 15 November 2019. I presided over both conciliation conferences.

3. Following the further conciliation, 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 would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

4. 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. The development application was notified by the Respondent for a period of 21 days, in accordance with the Waverley Development Control Plan 2012. The amended notification was not renotified as the amended plans result in lesser impact (s 2.6.1 Amendments prior to determination).

2. The development application has been made with the consent of the land owner (s 49 Environmental Planning and Assessment Regulation 2000).

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 953761M in compliance with the instrument.

4. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and the provisions of the Regulation. The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation

5. Consistent with the requirements of cl 7 of State Environmental Planning Policy 55 – Remediation of Land the applicant submitted a Preliminary Site Assessment report prepared by Ramboll (July 2018). The report concludes that the site can be made suitable for the proposed use. Further, the report identified sources of potential contamination and the parties have agreed a deferred commencement condition requiring that further assessment is completed prior to the consent being activated.

6. The proposed development contravenes the height development standard at cl 4.3 of Waverley Local Environmental Plan 2012 (WLEP) of 15m. The development as proposed has an overall height of 16.4m. I am satisfied that consent should be granted notwithstanding the contravention of the standard. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of WLEP.

7. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by Planning Ingenuity. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that:

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

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

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP 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 B4 Mixed Use zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP 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 WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

8. The proposed development complies with the remaining development standards in WLEP.

9. Pursuant with the provisions of the WLEP, the site is zoned B4 Mixed Use. The proposed development, shop top housing, is permissible with consent.

10. In deciding whether to grant development consent for the ancillary earthworks proposed by the application, I have given consideration to the matters at cl 6.2 of WLEP.

5. 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.

6. 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $18,809.00 within 28 days of these orders.

3. The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by Planning Ingenuity (contained at Annexure B), seeking to justify the contravention of the height of buildings development standard in clause 4.3 of WLEP is upheld.

4. The appeal is upheld.

5. Development Consent be granted to DA-361/2018 seeking consent to demolish the existing structures and to construct a five storey shop top housing development over basement level parking at the property at 134-138 Campbell Parade, Bondi Beach, subject to the conditions of consent in Annexure A.

………………………………

D M Dickson

Commissioner of the Court

Annexure A (736 KB)

Annexure B (1.08 MB)

**********

Amendments

09 May 2022 - Pursuant to UCPR r 36.17, paragraph 7(iv) of the judgment is amended as follows: The text “R3 Medium Density zone”” is replaced with “B4 Mixed Use zone”