Common Office Pty Ltd v Waverley Council

[2023] NSWLEC 1625

Land and Environment Court

New South Wales

Medium Neutral Citation:

Common Office Pty Ltd v Waverley Council [2023] NSWLEC 1625

Hearing dates:

Conciliation conference on 18-19 October 2023

Date of orders:

19 October 2023

Decision date:

19 October 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent DA-462/2021 relating to the demolition of existing structures and erection of dual occupancy dwellings at land identified as 12 Princess Street, Rose Bay, being Lot 12 in Section B in DP 4185 is modified in the terms set out in Annexure ‘A’.

(3) Development consent DA-462/2021, as modified by the Court and described as DA-462/2021/A, is set out in Annexure ‘B’.

(4) The applicants are to file the plans and documents referred at Order (2) above within 7 days of the judgment being delivered.

Catchwords:

APPEAL – modification application – dual occupancy dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, ss 34, 34AA

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

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

Category:

Principal judgment

Parties:

Common Office Pty Ltd (First Applicant)
Ricky Rosettenstein (Second Applicant)
Joshua Dov Wisemam (Third Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Reid (Applicants)
C Rose (Solicitor) (Respondent)

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

File Number(s):

2023/109830

Publication restriction:

Nil

JUDGMENT

The proceedings

1. These proceedings arise following the Council’s refusal of an application (DA462/2021/A) to modify a development consent DA462/2021 (original consent) which approved a dual occupancy on land located at 12 Princess Street, Rose Bay.

2. The matter was listed for a hearing under s 34AA(1)(a)(i) of the Land and Environment Court Act 1979 (LEC Act) and I was the presiding officer. During the s34 mandatory conciliation conference held after the site view the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them.

3. The decision involves the following modifications to the application:

• extension of the eastern dwelling basement by 15.8m², and amendments to the design of the internal stair;

• in both dwellings – reconfiguration of the layout of the kitchen, together with a 2.22m extension to the northern internal courtyard void, a 3m extension to the rear to facilitate larger living rooms, relocation of the rear terraces and awnings to the north and changes to openings;

• at the first floor level of each dwelling – a southern extension to bedroom 3, reconfiguration of the internal layout resulting in larger bathrooms and an additional bedroom to replace the study, a 3.93m extension to the northern void, a splayed northern extension (with chamfered edge) to the master bedrooms, extension towards the eastern and western boundaries to increase the size of bedroom 1 and master bedrooms ensuite in order to provide a separate shower and toilet area, changes to openings and associated extensions to the roof, addition of privacy screens and a green roof above the living room roof;

• relocation of the swimming pools and associated paving to the rear boundary, removal of Tree 3 (Weeping Bottlebrush), and amendments to landscaping and deletion of rear swimming pool decks.

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

5. The jurisdictional preconditions that must be satisfied before the proposed orders can be made are addressed in a joint jurisdictional submission filed with the executed s34 agreement. After review I accept on the evidence before me that there is no jurisdictional impediment to orders as agreed by the parties. In that regard, I note the following matters.

Environmental Planning and Assessment Act 1979 (EPA Act)

6. The modification application was made pursuant to s 4.55(2) of the EPA Act.

7. In accord with s 4.55(2)(a) I am satisfied on the evidence before me (see Tab 5, Class 1 application, SEE; and the Council’s assessment report Part 2.1 Tab 3, Council’s Bundle), that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

8. The application was notified in accordance with the Council’s Community Development Participation and Consultation Plan from 8 September 2022 to 22 September 2022 and five submissions were received (Council’s bundle Tabs 9 and 10). The parties submit and I accept that the most recent amendments have satisfactorily addressed all relevant objections to the application.

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

9. As required by the BASIX SEPP an updated BASIX certificate (1241426M_03) addressing the amended application was filed with the Court on 19 October 2023.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) – Ch 2

10. The parties are satisfied that the BC SEPP has been considered and satisfactorily addressed in both the original report and the addendum report.

11. The modification application seeks consent for removal of a bottlebrush bush at the rear of the site. The landscape plan will be supplemented with additional trees in accordance with the agreed conditions.

Conditions of consent

12. The conditions sought by the Council are agreed to by the applicants.

Conclusion

13. For the above reasons I find that the parties’ decision is within power as required by s 34(3) of the LEC Act. I now dispose of the proceedings in accordance with the parties’ decision.

14. The Court notes:

1. That Waverley Council, as the relevant consent authority, has approved, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, to the applicants amending modification application no. DA-462/2021/A to rely on the documents listed below:

Amended Architectural Plans
Plan description	Plan No and rev	Prepared by	Dated
Site Plan	DA 100 [09]	Common Office	18.10.23
Basement Plan	DA 200 [09]	Common Office	18.10.23
Ground Floor Plan	DA 201 [09]	Common Office	18.10.23
First Floor Plan	DA 202 [09]	Common Office	18.10.23
Roof Plan	DA 203 [09]	Common Office	18.10.23
Elevations North/South	DA 300 [09]	Common Office	18.10.23
Elevations East/West	DA 301 [09]	Common Office	18.10.23
Fences	DA 302 [09]	Common Office	18.10.23
Sections AA and BB	DA 400 [09]	Common Office	18.10.23
Section C01 and C02	DA 401 [09]	Common Office	18.10.23
Waste Management Plan	DA 502 [09]	Common Office	18.10.23
Courtyard	DA 602 [09]	Common Office	18.10.23
Site Plan	DA 100 [09]	Common Office	18.10.23
Basement Plan	DA 200 [09]	Common Office	18.10.23
Supporting Documentation
BASIX Certificate No. 1241426M_03	Certificate No.: 1241426M_03	Max Brightwell	17.10.23

15. The Court orders:

1. The appeal is upheld.

2. Development consent DA-462/2021 relating to the demolition of existing structures and erection of dual occupancy dwellings at land identified as 12 Princess Street, Rose Bay, being Lot 12 in Section B in DP 4185 is modified in the terms set out in Annexure ‘A’.

3. Development consent DA-462/2021, as modified by the Court and described as DA-462/2021/A, is set out in Annexure ‘B’.

4. The applicants are to file the plans and documents referred at Order (2) above within 7 days of the judgment being delivered.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (196146, pdf)

Annexure B (295643, pdf)

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Decision last updated: 23 October 2023