Da Cunha v Waverley Council

[2024] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:

Da Cunha v Waverley Council [2024] NSWLEC 1312

Hearing dates:

Conciliation conference on 4 and 5 June 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant’s amended written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (LEP), prepared by Larissa Ozog dated 5 June 2024 seeking a variation of the building height development standard under clause 4.3 of the LEP, is upheld.

(3) Development Application DA-495/2022, as amended, for demolition of existing structures, construction of a new three-storey dwelling house with balconies, a double garage and pool at 492 Bronte Road, also identified as SP12683 is determined by the grant of consent subject to Conditions contained in Annexure A.

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA, 39

Environmental Planning and Assessment Regulation 2021, s 27, 37, 38

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2, 6.15

Category:

Principal judgment

Parties:

Filipe Da Cunha (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
M Staunton (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/356399

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing dual occupancy and the construction of a three-storey dwelling house with a swimming pool at 492 Bronte Road, Bronte. The development application was refused by Waverley Council on 23 August 2023. The applicant appeals against that decision, 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 [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 4 and 5 June 2024. 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.

4. The agreement was filed on 5 June 2024, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include increased setbacks, reduction in the driveway width, removal of the northern balcony on level 3, provision of a terraced retaining wall to the northern boundary, the addition of privacy screens, and internal reconfiguration of the floor plans. The amended design has rear setbacks of up to 15m to the third storey and between 7.15m and 8.83m for the second storey, which achieves better alignment with the rear setbacks of the adjacent dwellings. It also has level 3 side setbacks of 1.5m on the eastern boundary and a varying setback of between 900mm and 1.5m on the western boundary. In addition, the setback to the garage on the eastern boundary is now 0.3m and the setbacks to level 2 have been increased including the setback to the Bronte Road frontage. The amended development application also includes an updated Stormwater Management Plan dated 9 May 2024 that confirms all stormwater drainage works will be carried out on the site.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. 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 development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 10.25m represents a contravention of 1.75m (20.5%) above the numerical standard. The contravention is largely confined to part of the third storey, where the bedrooms and ensuite are located, which is substantially recessed from the rear setback. The breach of the development standard is supported by the written request dated 5 June 2024, lodged pursuant to cl 4.6 of the WLEP (prior to its amendment by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023). I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises from the topography of the site and the significant excavation that has already occurred, and enables consistency in the streetscape with adjacent development, as strict compliance would create a building that presents as a single storey to Bronte Road, lower in height than the existing streetscape character and out of character with that streetscape. 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. 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 floor space ratio (FSR) development standard allowed by the exception permitted for dwelling houses in cl 4.4A of the WLEP.

• The site is located on land classed as Class 5 Acid Sulfate Soils and is within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum. However, as there is minimal excavation required due to prior excavation of the site, there are no works proposed that are likely to lower the watertable below 1m Australian Height Datum and therefore nothing further is required pursuant to cl 6.1 of the WLEP.

• The development application includes earthworks for the provision of the  basement  level  for  car  parking. Based  on  the  Stormwater Management Plan dated 9 May 2024, the contents of the Jurisdictional Note, and the limited excavation due to the existing excavation already undertaken, I have considered the matters set out in cl 6.2(3) of the WLEP.

• Clause 6.15 of the WLEP concerns stormwater management. Based on the Stormwater Management Plan dated 9 May 2024, the contents of the Jurisdictional Note, and the proposed conditions of consent, I am satisfied of the matters in cl 6.15(3).

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

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 5 June 2024.

• The development application was notified between 30 November and 19 December 2022. Nine submissions were received. In addition, residents from the dwellings immediately adjacent to the proposed development made submissions at the commencement of the conciliation conference. I have considered the issues raised in both the written and oral submissions. Some of those issues have been addressed through the amendments to the development application.

7. 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)).

8. 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.

9. The Court notes that:

1. Waverley Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-495/2022 in accordance with the documents per the documentation below:

Plan name			Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
Site Plan			DA001	DA-4	04.06.24	Mary Ellen Hudson
Roof plan			DA100	DA-4	04.06.24	Mary Ellen Hudson
Bedroom level plan			DA101	DA-4	04.06.24	Mary Ellen Hudson
Entry/ garage/kitchen plan			DA102	DA-4	04.06.24	Mary Ellen Hudson
Living level plan			DA103	DA-4	04.06.24	Mary Ellen Hudson
Pool/retaining wall plan			DA104	DA-4	04.06.24	Mary Ellen Hudson
Elevations			DA200	DA-4	04.06.24	Mary Ellen Hudson
Elevations			DA201	DA-4	04.06.24	Mary Ellen Hudson
Elevations			DA202	DA-4	04.06.24	Mary Ellen Hudson
Elevations			DA203	DA-4	04.06.24	Mary Ellen Hudson
Section A			DA300	DA-4	04.06.24	Mary Ellen Hudson
Section B			DA301	DA-4	04.06.24	Mary Ellen Hudson
Section C			DA302	DA-4	04.06.24	Mary Ellen Hudson
Section D			DA303	DA-4	04.06.24	Mary Ellen Hudson
GFA plans			GFA01	DA-4	04.06.24	Mary Ellen Hudson
Finishes schedule			FS01	DA-4	04.06.24	Mary Ellen Hudson
Landscape plan			LP1	DA-4	04.06.24	Mary Ellen Hudson
Landscape plan - planters			LP2	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 01			WS01	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 02			WS02	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 03			WS03	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 04			WS04	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 05			WS05	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 06			WS06	DA-4	04.06.24	Mary Ellen Hudson
Window Schedule 07			WS07	DA-4	04.06.24	Mary Ellen Hudson
Door Schedule 01			DS01	DA-4	04.06.24	Mary Ellen Hudson
Door Schedule 02			DS02	DA-4	04.06.24	Mary Ellen Hudson
Amended Stormwater Plans
Legend	DR-000			3	09/05/2024	Stellen Consulting
Pipe Layout and Details – Living & Pool Equipment Levels	DR-001			3	10/05/2024	Stellen Consulting
Pipe Layout – bedroom and entry level	DR-002			2	10/05/2024	Stellen Consulting
Roof Layout and Rainwater Head Details	DR-003			3	09/05/2024	Stellen Consulting
Details	DR-004			3	09/05/2024	Stellen Consulting
Amended Survey Plan
Plan showing Site details and levels and survey camera locations and extra details for 492 Bronte Road, Bronte		79701DT Sheet 1 of 1			19/03/2024	Harrison Friedmann & Associates Pty Ltd
Amended Reports
Amended Clause 4.6 report prepared by Larissa Ozog dated 5 June 2024
Amended NatHERS Certificate prepared by Nathan Chapman dated 5 June 2024
Amended BASIX Certificate, summary and stamped plans prepared by Nathan Chapman dated 5 June 2024

2. That the Applicant filed the amended Development Application with the Court on 5 June 2024.

10. The Court orders that:

1. The appeal is upheld.

2. The Applicant’s amended written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (LEP), prepared by Larissa Ozog dated 5 June 2024 seeking a variation of the building height development standard under clause 4.3 of the LEP, is upheld.

3. Development Application DA-495/2022, as amended, for demolition of existing structures, construction of a new three-storey dwelling house with balconies, a double garage and pool at 492 Bronte Road, also identified as SP12683 is determined by the grant of consent subject to Conditions contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 11 June 2024