Bondi Crescent No 1 Pty Ltd v Waverley Council

[2020] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bondi Crescent No 1 Pty Ltd v Waverley Council [2020] NSWLEC 1121
Hearing dates:	Conciliation conference on 10 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (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 $15,000 within 21 days of these orders. (3) The appeal is upheld. (4) Development Consent be granted to DA-395/2018 seeking consent for the demolition of all existing structures, and the construction of a new, nine (9) level residential flat building above a three (3) level basement at 21 Waverley Crescent, Bondi Junction, subject to the conditions of consent in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 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 Crescent No 1 Pty Ltd (First Applicant) Bondi Crescent No 2 Pty Ltd (Second Applicant) Waverley Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicants) S Patterson (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicants) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/382826
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 395/2018 by the Waverley Council (hereafter the Council) for demolition of existing structures and construction of a nine storey residential apartment building with three basement levels on Lot 2 DP 9979, also known as 21 Waverley Crescent, Waverley (hereafter the site).

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to the parties request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), held on 10 March 2020, and starting on site. One resident objector was heard at the conciliation, whom raised an issue relating to overshadowing.

4. At the conciliation conference before me, the applicant sought to amend the plans to the DA to be relied upon in the agreement, with no objection from the respondent.

5. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and issues raised by the objectors (in a previous notification of the DA), have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 395/2018 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 395/2018, with conditions and plans to be relied upon described in Annexure ‘A’.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); and Waverley Local Environmental Plan 2012 (WLEP). In addition, the Waverley Development Control Plan 2012 (WDCP) is of consideration to grant consent to the DA.

8. In consideration of the requirements of SEPP ARH, the DA is supported by amended plans. The proposed development includes the provision of affordable rental housing. The parties agree that the relevant requirements of the SEPP ARH are satisfied.

9. A BASIX Certificate for the proposed development is identified in the conditions of consent in compliance with the requirements of the SEPP BASIX.

10. In compliance with the requirements of SEPP 65, the DA is supported by the amended plans and described in the conditions of consent. The parties agree that the requirements of the SEPP 65 are satisfied for the proposed residential apartment building.

11. The parties agree that the relevant provisions of the WLEP are addressed to their satisfaction by the supporting documents and amended plans relied on by the DA under appeal. The proposed development is located within the R4 High Density Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the WLEP, are satisfied.

12. The proposed development does not exceed any numeric requirements for development standards of the WLEP, and satisfies the objectives for the relative clauses, particularly cl 4.3 as contended by Council. The proposed development has considered and has had regard to the existing development on the site and surrounding development.

13. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council and issues raised by objectors that relate to the controls as specified in the WDCP are resolved to the satisfaction of the parties.

14. The parties agree that the proposed development was publicly notified in accordance with the WDCP. During the notification period for the DA under appeal, a number (17) of submissions in objection were received by Council. These submissions were considered by the parties, prior to reaching the agreement and are resolved to the parties’ satisfaction.

15. The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the amended DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 395/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

17. 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.

18. The Court orders:

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 $15,000 within 21 days of these orders.

3. The appeal is upheld.

4. Development Consent be granted to DA-395/2018 seeking consent for the demolition of all existing structures, and the construction of a new, nine (9) level residential flat building above a three (3) level basement at 21 Waverley Crescent, Bondi Junction, subject to the conditions of consent in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A.docx (310 KB)

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