D-Studio Architects Pty Ltd v Waverley Council

[2023] NSWLEC 1278

Land and Environment Court

New South Wales

Medium Neutral Citation:

D-Studio Architects Pty Ltd v Waverley Council [2023] NSWLEC 1278

Hearing dates:

Conciliation conference on 3 and 27 March 2023, 18 and 28 April 2023 and 5 May 2023, final agreement filed on 10 May 2023

Date of orders:

05 June 2023

Decision date:

05 June 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend DA-325/2021/A and rely on the amended plans and documents listed at condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development Consent DA-325/2021/A is modified in the terms set out at Annexure A.

(4) Development Consent DA-325/2021/A as modified by the Court is set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, ss 102, 113

Land and Environment Court Act 1979, s 34

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

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2

Texts Cited:

NSW Department of Planning, Apartment Design Guide (2015)

Waverly Community Development Participation and Consultation Plan 2019

Category:

Principal judgment

Parties:

D-Studio Architects Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

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

File Number(s):

2022/354214

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal concerns a Modification Application (the MA) seeking to modify the parent Development Consent DA-325/2021 (the DA) which granted consent for the demolition of existing structures and construction of an eight-storey residential apartment building comprising eight units, a roof top communal area, two levels of basement parking and integrated car lift access at 40 Waverley Street, Bondi Junction (the site).

2. Consent for this parent DA was granted by the Court on 24 May 2022. The MA was lodged with the Court on 24 November 2022 pursuant to s 4.55(8) of the EPA Act.

3. The MA seeks approval for the following modifications:

1. Increased extent of excavation area at basement levels one and two to accommodate essential building services and resultant internal reconfiguration.

2. Reconfiguration of the ground level to accommodate an ensuite and other general layout changes including window adjustments, an extended entry ramp to comply with relevant Australian Standards, amendments to accommodate letterboxes, services and a visitor bicycle space, the introduction of stairs to the fire egress path, relocation of the hydrant boosters to the street frontage to comply with Fire Brigade requirements, increased size of water and gas metres, and other minor associated adjustments.

3. Minor revisions to each of residential levels one to seven to introduce services and modify lift lobbies, along with some general amendments to unit layouts.

4. Reconfiguration of photovoltaic panels at the roof terrace level, deletion of rooftop air conditioning plant area, revised communal open space including additional weather protection at lift lobby.

5. An increase to the height of the approved lift overrun, an increase in area and height of the approved car park exhaust riser, and other minor amendments to materials, finishes, fenestration proportions and compositional elements.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 27 March 2023, 18 and 28 April 2023 and 5 May 2023. I presided over the conciliation conference.

5. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55(8) of the EPA Act to modify the existing DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the MA has been made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.

9. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, no change to the number of levels above or below ground, no change to the number of dwellings, and the general appearance of the building continues to present as an eight-storey residential apartment development.

10. The parties agree, and I am satisfied, that the MA was notified in accordance with the Waverley Community Development Participation and Consultation Plan 2019. The MA was notified between 15 December 2022 and 16 January 2023 and notified for a second period from 25 January to 15 February 2023.

11. The Respondent received no submissions in response to these notification periods.

12. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent, and that the amended MA maintains the objectives of the R4 zone.

13. The parties agree, and I am satisfied, that all principal development standards of the WLEP are maintained by the amended MA with the exception of the cl 4.3, Height of buildings.

14. In this instance, the relevant height of building development standard for the site is 28m. The amended MA results in a minor exceedance of this height by approximately 450mm. The increase in height is attributable to the proposed increased height of the lift overrun necessary to accommodate a conventional proprietary lift. The parties agree, and I am satisfied, that the exceedance of the height of building standard reflected in the amended MA brings with it no material environmental impacts, and is acceptable.

15. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP, Acid sulfate soils, the amended MA remains consistent with the parent DA consent and raises no further considerations under the terms of cl 6.1.

16. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the WLEP, Earthworks, consent for the parent DA was granted after assessing the Applicant’s Geotechnical Report (prepared by EI Australia) and with the imposition of agreed conditions of consent. The amended MA proposes some additional extent of excavation associated with the two approved basement levels and generally remains consistent with the existing DA and relevant conditions of consent, hence maintaining the objectives of cl 6.2.

17. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, the DA assessment concluded that the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended MA continues to satisfactorily address those matters outlined in s 4.6 of SEPP Resilience and Hazards.

18. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A revised BASIX certificate, dated 5 April 2023, has been submitted with the amended MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

19. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, D-Studio Architects and its nominated architect, Mr Simon Tso (NSW registered architect 5422), has prepared a Design Verification Statement fulfilling the requirements of s 102 of the EPA Reg. This Statement confirms that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and states how the design quality principles of SEPP 65, and the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved.

20. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

21. The Court notes that:

1. Pursuant to s 113 of the EPA Reg, the Applicant has amended the MA with the agreement of the Respondent.

2. The Applicant has filed the amended MA with the Court on 28 April 2023.

3. The Applicant has agreed to pay the Respondent’s costs thrown away as a result of amending the MA in the sum of $8,000 within 28 days of the date of agreement.

Orders

22. The Court orders that:

1. Leave is granted to the Applicant to amend DA-325/2021/A and rely on the amended plans and documents listed at condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Consent DA-325/2021/A is modified in the terms set out at Annexure A.

4. Development Consent DA-325/2021/A as modified by the Court is set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 07 June 2023