Bronswood Pty Ltd v Waverley Council

[2024] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bronswood Pty Ltd v Waverley Council [2024] NSWLEC 1035

Hearing dates:

Conciliation conference on 4 August 2023; 22 September 2023; 30 November 2023 and 19 December 2023

Date of orders:

05 February 2024

Decision date:

05 February 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away by reason of the amendment of development application DA-327/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development application DA-327/2022 for the demolition of the existing buildings and construction of a new part four and part five-storey shop top housing building with basement parking at 104-106 Bronte Road, Bondi Junction NSW 2022 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

APPEAL – development application – shop top housing development with basement parking – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15(3)

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

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

Waverley Local Environment Plan 2012, cll 2.7, 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.9, 6.12, 6.14, 6.15

Texts Cited:

Apartment Design Guide

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Bronswood Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/53203

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following the Waverley Local Planning Panel’s refusal of development application DA-327/2022 (DA) for the demolition of the existing buildings and construction of a new part four and part five-storey shop top housing building with basement parking at 104-106 Bronte Road, Bondi Junction NSW 2022 also known as folios 2/964861 and 1/978090 (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 was held on 4 August, 22 September, 30 November and 19 December 2023. I presided over the conciliation conference.

3. During the s34 conciliation conference the applicant amended its application. The amendments have resolved the contentions raised in the Council’s Statement of Facts and Contentions and the parties have lodged an agreement setting out the terms of a decision in the proceedings that would be acceptable to them. The agreement includes a condition of consent in respect to Council’s acceptance of the applicant’s offer of a Voluntary Planning Agreement.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions.

Jurisdictional preconditions

5. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in the parties’ joint jurisdictional submission annexed to their written agreement. After a consideration of those submissions, I am satisfied, on the evidence before me, that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following matters.

Waverley Local Environment Plan 2012 (LEP)

6. Demolition of the structures on the site is permissible with consent pursuant to cl 2.7 of the LEP.

Zoning

7. The site is zoned MU1 Mixed Use under Zoning Table to the LEP and the development is permissible with consent.

Lot size

8. The size of the land does not raise any non-compliances with the requirements for minimum lot size pursuant to cl 4.1 of the LEP. That clause does not apply to the registration of a strata plan of subdivision by virtue of subcl 4.1(4)(a).

Height

9. The final plans identify a breach of the permissible height allowed under cl 4.3 of the LEP. The permissible height in the LEP Height of Buildings Map is 15m. The maximum height of the building to the top of the roof parapet is 16.47m and to the top of the lift over run is 17.1m constituting a breach of 2.1m or 14%.

10. A clause 4.6 variation request has been prepared by GSA Planning dated October 2023 seeking a relaxation of the height standard in the circumstances of this case.

11. The Council supports the relaxation of the height standard for the reasons outlined in the cl 4.6 request and I am satisfied on that basis that the breach of the standard should be allowed in this case.

Floor space ratio (FSR)

12. The final plans identify a breach of the permissible FSR allowed under cl 4.4 of the LEP. The permissible FSR in the LEP Floor Space Ratio Map is 2:1. The site is 455sqm permitting 910sqm. The proposed gross floor area is 987sqm constituting a 77sqm breach or an FSR of 2.17:1. The breach is 8.3%.

13. A clause 4.6 variation request has been prepared by GSA Planning dated October 2023 seeking a relaxation of the FSR standard in the circumstances of this case.

14. The Council supports the relaxation of the FSR standard for the reasons outlined in the cl 4.6 request and I am satisfied on that basis that the breach of the standard should be allowed in this case.

Other matters

15. In relation to cl 6.1 ‘Acid Sulfate soils’, the site is not mapped on the LEP maps and therefore acid sulfate soil is not a consideration.

16. In relation to cl 6.2 ‘Earthworks’, the LEP requires consideration as to those matters at cl 6.2(3). The geotechnical matters raised by cl 6.2(3) have been addressed in the expert report prepared by Geotechnical Consultants Australia Pty Ltd dated 7 March 2022. The applicant has also accepted the imposition of the Council’s conditions in respect of earthworks, geotechnical and structural engineering matters. Collectively, the report and the agreed conditions satisfy the requirements under cl 6.2 of the LEP.

17. In relation to cll 6.9 and 6.12 ‘Design Excellence’ the site is marked in the colour pink on the ‘Key Sites Map’ in the LEP. This means both cll 6.9 and 6.12 apply.

18. In respect of cl 6.9, the parties agree that the necessary consideration under cl 6.9(4) has been undertaken as part of the Applicant’s SEE prepared by GSA Planning dated June 2022, and are detailed in the final plans.

19. In respect of cl 6.12, the parties submit, and I accept that cl 6.12(3) has been satisfied and that the commercial space proposed in the final plans is equal to or more than the commercial space in existence on the site as at 1 January 2021.

20. The parties submit, and I accept that the matters in cl 6.14 regarding waste minimisation and recycling have been satisfactorily addressed by the final plans.

21. In relation to cl 6.15 ‘Stormwater’, the consent authority must reach a level of satisfaction with respect to matters arising in cl 6.15(3). The applicant has prepared Stormwater Plans by Inline Hydraulic Services which forms part of the DA and responds to each of those matters at cl 6.15(3). The parties submit, and I accept that stormwater management has been satisfactorily addressed.

22. In respect of cl 5.10, the parties accept that the site does not contain items of environmental heritage and is not located in a heritage conservation area. That said, the parties have identified that there are Items of heritage proximate to the site and there is a heritage conservation area across Adams Lane at the rear of the site. Details of the heritage items are shown at pars 14-16 of the SOFC.

23. Notwithstanding the proximity of the site to the abovementioned areas, the provision of cl 5.10 does not apply. Nonetheless the parties submit, and I accept that the impact of the development on the Items of heritage proximate to the site and the heritage conservation area across Adams Lane at the rear of the site have been considered in the final design of the development.

24. In respect of cl 5.21, the parties submit, and I accept that the site is not located within a flood planning area and on this basis, the clause does not apply.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

25. Section 4.6 of the RH SEPP requires consideration. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated. Section 4.6(2) is required for a change of use.

26. The applicant prepared a Preliminary Site Investigation prepared by JK Environmental dated 28 October 2022 which resolves at clause 6.3 that potential sources of contamination would not preclude development of the site.

27. It is noted that the agreed conditions between the parties include references to a need for further contamination consideration prior to the issue of a construction certificate. On that basis, the parties submit, and I accept that the provisions of Ch 4, s 4.6 of the RH SEPP have been satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

28. The parties submit and I accept that the BASIX certificate dated 31 October 2023 is satisfactory. The BASIX certificate complies with all the relevant requirements in the SEPP.

State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (SEPP 65) and the Apartment Design Guide

29. A Design Verification Statement dated 19 October 2023 was prepared by Bureau SRH Architects in respect of the final plans. The parties submit and I accept that the final plans are consistent with the provisions of SEPP 65.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

30. Part 2 of the BC SEPP applies. There is minimal clearing of any vegetation on the site for the purpose of facilitating the proposed development. The parties submit, and I accept on the evidence before me that appropriate consideration has been given to the terms of this SEPP.

Waverley Development Control Plan 2012 (DCP)

31. The applicant states that the final plans can be approved having regard to relevant provisions of the DCP. It is noted that the Council adopted a new DCP on or about 9 December 2022 but that it contains a savings provision at Part A1.6 with respect to applications lodged before the new DCP came into force.

Community consultation

32. The Council notified residents of the DA for a period of 21 days from 16 August 2022 to 6 September 2022. One submission was received which raised issues which are listed at par 21 of the SOFC.

33. The parties submit, and I accept that community consultation has been undertaken in accordance with the Council’s community engagement strategy and in accordance with the Environmental Planning and Assessment Act 1979 (EPA Act). All relevant objections have been taken into account in the final design.

Environment Planning and Assessment Regulations 2021 (EPA Reg)

34. Owner’s consent was provided for the lodgement of the DA by the respective owners of each Lot and forms part of the Class 1 application. Therefore, the provisions of s 23 of the EPA Reg are satisfied.

35. Having regard to all of the above matters, the parties agree that the jurisdictional    prerequisites to the proper exercise of the power to approve the DA amended by the final plans have been satisfied.

36. 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.

Notations and orders

37. Accordingly, the Court notes:

1. That Waverley Council, as the relevant consent authority, has approved under s 38 of the EPA Reg, to the applicant amending development application DA-327/2022 to rely on the documents listed below:

1. Amended Architectural Plans prepared by SRHA Project No. 21101:

Plan Number and Revision	Plan description	Plan Date	Plan Number and Revision
DA000 A	Cover Page	17/11/23	DA000 A
DA006 C	Site Plan	17/11/23	DA006 C
DA100 E	Basement Plan	17/11/23	DA100 E
DA101 G	Ground Floor Plan	07/12/23	DA101 G
DA102 D	First Floor Plan	17/11/23	DA102 D
DA103 D	Second Floor Plan	17/11/23	DA103 D
DA104 D	Third Floor Plan	17/11/23	DA104 D
DA105 D	Fourth Floor Plan	17/11/23	DA105 D
DA108 D	Roof Plan	17/11/23	DA108 D
DA200 C	East & West Elevation	17/11/23	DA200 C
DA201 B	South & North Elevation	17/11/23	DA201 B
DA300 F	Section 01	17/11/23	DA300 F
DA301 F	Section 02	17/11/23	DA301 F
DA302 B	Section 03 & 04	17/11/23	DA302 B
DA515 B	Material Schedule	17/11/23	DA515 B

2. Supporting documents:

1. Landscape Plans and documentation No. PD-L103 rev P 23/5/22, DAL101 & DA-L103 both rev P dated 23/5/20 prepared by Canvas Landscape Architects;

2. BASIX and NatHERs Certificate/s; No. 1293108M_02 Date of issue 31 October 2023 by PI&E

3. Preliminary (Stage 1) Site Investigation E35509PLrpt prepared by JK Environments Pty Ltd and dated 28 October 2022;

4. Geotechnical Investigation Report prepared by GCA G2232-1-Rev A and dated 7 March 2022;

5. Submitted by InLine Hydraulic Services PTY LTD, Reference Number 22121V1, DWG. HDA01/P6 - HDA07/P6, Issue P6, dated 04/12/2023;

6. Flood Report prepared by Torinex, Issue 3, dated 13 November 2023, Reference No.2000231

7. Music Models TRIM No D23/126854, and TRIM No. D23/126853 via emails dated 06/07/2023

8. Transport & Parking Impact Assessment 22009 rev D prepared by Transport Strategies and dated October 2023;

9. Submitted by Geoff Swalwell Surveyors PTY LTD, Reference Number 2165, Sheet 1 Issue 01 date: 13/06/2021

10. Arborist Report prepared by Abnoba Arbor dated 7 March 2022, and received by Council on 4/8/22;

11. Waste Management Plans DA501.1 and 501.2 both rev A prepared by Leigh Design dated 7 December 2023

2. The amended plans and documents referred to above were filed with the Court on 8 January 2024.

38. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away by reason of the amendment of development application DA-327/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development application DA-327/2022 for the demolition of the existing buildings and construction of a new part four and part five-storey shop top housing building with basement parking at 104-106 Bronte Road, Bondi Junction NSW 2022 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (538117, pdf)

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Decision last updated: 05 February 2024