Concretive Capital Pty Ltd v Waverley Council

[2019] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation:	Concretive Capital Pty Ltd v Waverley Council [2019] NSWLEC 1523
Hearing dates:	Conciliation conference on 11; 19 September 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: 1) Leave is granted to the Applicant to rely on the amended plans set out in condition A1 of 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 the sum of $15,000 within 28 days of these orders. 3) The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by SJB Planning (NSW) Pty Ltd dated 3 October 2019 (contained in Annexure B), seeking to justify the contravention of the floor space ratio development standard in Clause 4.4 of the WLEP is upheld. 4) The appeal is upheld. 5) Development consent is granted to Development Application No. DA 452/2018 for the demolition of existing buildings and the construction of a four storey shop top housing development containing 6 apartments, ground floor commercial tenancy, basement parking and associated works on Lot 6 Deposited Plan 9036, known as 657 Old South Head Road, Rose Bay subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – shop top housing – amended design – 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55 – Remediation of Land Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Concretive Capital Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: C McEwan SC (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Jaku Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/15940
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application DA-452/2018. The development application seeks approval for the demolition of an existing single storey commercial building and construction of a four (4) storey shop top housing development with basement parking, ground floor commercial tenancy and residential units.

2. On the 4 December 2018, the Applicant lodged a development application with Waverley Council. Following the expiration of the deemed refusal period for the application, the Applicant appealed to the Court.

3. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s34 of the Land and Environment Court Act 1979 (LEC Act), which was held on the 11th and 19th of September 2019. I presided over the conciliation conference. Through the conciliation process, the parties have agreed an amended design for the proposed works. The agreed orders provide leave to the applicant to rely on this amended material in their development application.

4. 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

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. With regard to the consideration required at cl 7 of State Environmental Planning Policy 55 – Remediation of Land, I note that a Preliminary Site Investigation has been undertaken by Geotest Services, and the recommendations are incorporated in the consent conditions. I am satisfied that this meets the requirements of cl 7 of the instrument.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 982619M_02 in compliance with the instrument.

3. Pursuant with the provisions of the Waverley Local Environmental Plan 2012 (WLEP) the site is zoned B4 Mixed Use Zone. The proposed development, shop top housing, is permissible with consent.

4. I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio standard at cl 4.4 of WLEP. The development standard establishes a maximum floor space of 1.5:1 (744.15m²). Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of WLEP. The amended development application has a maximum floor space ratio (FSR) of 1.72:1 (108.52m²).

5. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by SJB Planning. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of WLEP).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4 Mixed Use Zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

6. The original application was 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. Further, 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.

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

1. Leave is granted to the Applicant to rely on the amended plans set out in condition A1 of 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 the sum of $15,000 within 28 days of these orders.

3. The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by SJB Planning (NSW) Pty Ltd dated 3 October 2019 (contained in Annexure B), seeking to justify the contravention of the floor space ratio development standard in Clause 4.4 of the WLEP is upheld.

4. The appeal is upheld.

5. Development consent is granted to Development Application No. DA 452/2018 for the demolition of existing buildings and the construction of a four storey shop top housing development containing 6 apartments, ground floor commercial tenancy, basement parking and associated works on Lot 6 Deposited Plan 9036, known as 657 Old South Head Road, Rose Bay subject to the conditions of consent in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (532 KB)

Annexure B (4.15 MB)

Amended plans (14.9 MB)

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Decision last updated: 01 November 2019