Bondi Community Project Pty Ltd v Waverley Council

[2020] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bondi Community Project Pty Ltd v Waverley Council [2020] NSWLEC 1411

Hearing dates:

Conciliation conference on 21 August 2020

Date of orders:

07 September 2020

Decision date:

07 September 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See orders at [8] below

Catchwords:

DEVELOPMENT APPLICATION – subdivision – 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
Waverley Local Environmental Plan 2012

Cases Cited:

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603

Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292

Category:

Principal judgment

Parties:

Bondi Community Project Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Sandstrom (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2019/358128

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 Bondi Community Project Pty Ltd (Applicant) who is appealing the deemed refusal of their development application, DA-159/2019, by Waverley Council (the Respondent). The application seeks consent for a two-lot subdivision. The development application notes that the development is proposed at 105 Wellington Street, Bondi (Lot 15 and 16 Section 4 DP 441, Lot 1 and Lot 2 DP 34144) (the subject site).

2. I note that the subject site benefits from an existing consent (DA-413/2017). Since the lodgement of the development application the Applicant has consolidated Lot 15 and 16 Section 4 DP 441, Lot 1 and Lot 2 DP 34144 as required by the existing consent. The NSW Land and Registry has confirmed that the current legal description of the subject site is Lot 1 in DP 1262261. As a result, the Applicant seeks leave to amend their Class 1 Application to reflect the new property description. The Respondent consents to leave being granted.

3. 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.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 21 August 2020. Following the 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 amended application no longer proposes torrens title subdivision and instead seeks a stratum subdivision of the land. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment.

5. 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 lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. Pursuant to the Waverley Local Environmental Plan 2012 (LEP 2012) the subject site is zoned R3 – Medium Density Residential. The proposed development (subdivision) is permissible with consent in the zone. I have had regard to the objectives of the zone in determining the application. 

3. The proposed development does not contravene any development standard in LEP 2012.

4. I am satisfied that cl 55 of the Regulation is ‘beneficial and facultative’: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40] and should be ‘given the widest interpretation which its language will permit’: Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 at [6]-[10], I am satisfied that the amendments sought by the Applicant have not converted the application into an original or new development application.

5. The development application, and the amended development application were notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. 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.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

1. The Applicant is granted leave for their amended Class 1 Application dated 24 August 2020.

2. The Applicant is granted leave to amend the development application from an application for a Torrens Title subdivision to a Stratum subdivision and to rely on the following documents:

1. Draft Stratum Subdivision Plan Sheets 1 to 5, prepared by Tasy Moraitis, ref No 201667 DSUB dated 1 May 2019 – Issue 3 and received by Council on 6 July 2020.

2. Draft DP Admin Sheet received by Council on 6 July 2020.

3. Draft s88B Instrument received by Council on 20 July 2020.

4. Draft Stratum Management Plan prepared by Bugden Allen Lawyers (undated) and received by Council on 6 July 2020.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent consent authority that are thrown as a result of amending the development application in the amount of $9,000 to be paid within 28 days of the final orders of the Court.

4. The appeal is upheld.

5. Development Application No. DA-159/2019 for stratum subdivision of Lot 1 in DP 1262261 known as 105 Wellington Street, Bondi is approved subject to the conditions at Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (175149, pdf)

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Decision last updated: 07 September 2020