Bondi Heights Pty Ltd v Waverley Council

[2022] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bondi Heights Pty Ltd v Waverley Council [2022] NSWLEC 1303

Hearing dates:

Conciliation conference on 9 June 2022

Date of orders:

9 June 2022

Decision date:

09 June 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-5/2021 for the demolition of the existing dual occupancy and the construction of a four (4) storey residential flat building containing 4 apartments and basement carparking at 34 Military Road, North Bondi, subject to the conditions set out in Annexure ‘A’.

The Court notes that:

(1) In satisfaction of order 4 granted on 29 April 2022, the parties agree that the Applicant is to pay the amount of $17,000 to the Council within 28 days of the date of these orders.

Catchwords:

APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1, cl 50,

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021 cll 2.11, 4.6

Waverley Local Environmental Plan 2012 cll 4.3, 4.6

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

Bondi Heights Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/293527

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a four-storey residential flat building with basement parking at 34 Military Road, North Bondi. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged the appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 9 June 2022. I presided over the conciliation conference.

3. At the conciliation conference, 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 was acceptable to the parties. The agreement refects the signed agreement that was filed on 7 June 2022. The agreement was reached following the lodging of amended plans on the NSW Planning Portal and orders of the Court made on 29 April 2022.

4. The signed agreement is supported by a Jurisdictional Statement that sets out the matters about which the Court, in exercising the functions of the consent authority, must be satisfied prior to the grant of development consent. A position paper dated 20 May 2022 was also provided on behalf of the applicant, which sets out the amendments made in the amended development application and the manner in which they resolve the contentions raised by the Council in the proceedings.

5. The decision agreed upon in the signed agreement is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R3 Medium Density Residential, pursuant to the Waverley Local Environmental Plan 2012 (WLEP 2012). Residential flat buildings are permissible with consent in the R3 zone.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 9.5m, pursuant to cl 4.3 of the WLEP 2012. The proposed maximum height of 11m represents a contravention of 1.5m above the numerical standard. The contravention is brought about by the significant fall in the land, which slopes from the front to the rear by around 9m. I am satisfied that the written request of March 2022, lodged pursuant to cl 4.6 of the WLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by outlining how it arises directly from the slope of the site. The design follows the contours of the site but the dramatic changes in natural ground level create various exceedences where the site falls. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development complies with the remaining applicable development standards that arise pursuant to the WLEP 2012.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP 2021). As the site has a history of residential use, it is unlikely to be contaminated.

• Part of the site is within the coastal use area, pursuant to the SEPP 2021. Based on the Council’s assessment report from July 2021 and the extent of the proposed development, I have considered the matters in cl 2.11(1)(a), and, consistent with cl 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in cl 2.11(1)(a).

• The development application in the Class 1 Application was accompanied by a statement of a qualified designer that verifies the design of the development, as required by cl 50(1A) and (1AB) of the EPA Regulation.

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria.

• The development application was notified on 20 January 2021 for a period of 21 days, and the amended development application that is now before the Court was notified between 10 and 24 May 2022. I have considered the issues raised in the written submissions received in response to the notification of the development application and the amended development application, which are summarised in the Statement of Facts and Contentions filed in the proceedings.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

Orders

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-5/2021 for the demolition of the existing dual occupancy and the construction of a four (4) storey residential flat building containing 4 apartments and basement carparking at 34 Military Road, North Bondi, subject to the conditions set out in Annexure ‘A’.

9. The Court notes that:

1. In satisfaction of order 4 granted on 29 April 2022, the parties agree that the Applicant is to pay the amount of $17,000 to the Council within 28 days of the date of these orders.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 09 June 2022