Daley v Waverley Council

[2023] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Daley v Waverley Council [2023] NSWLEC 1127

Hearing dates:

Conciliation conference on 20-21 March 2023

Date of orders:

23 March 2023

Decision date:

23 March 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the Amended Application at Annexure ‘A’.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-564/2021 for the demolition of the existing detached dwelling and for the construction of a new dwelling, garage and associated landscaping at 3 Bronte Marine Drive, Bronte (legally known as Lot 2 in DP 401217), subject to the conditions of consent in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 Low Residential Density zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6

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

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

Category:

Principal judgment

Parties:

Louise Daley (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
R White (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/321441

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Waverley Council (the Respondent) of development application No DA-564/2021 seeking consent for demolition of the existing dwelling and construction of a new three-storey dwelling, garage and associated landscaping at 3 Bronte Marine Drive, Bronte.

2. The appeal was listed for mandatory conciliation on 20 March 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. Prior to the conciliation conference, at which I presided, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention, but for amendments sought to address resident submissions for which an adjournment was granted.

4. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 March 2023.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [23].

8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

9. The site is located within the R2 Low Density Residential zone, pursuant to the Waverley Local Environmental Plan 2012 (WLEP), in which dwelling house development is permitted with consent, where consistent with the objectives of the zone, as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To maximise public transport patronage and encourage walking and cycling.

•  To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time.

•  To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability.

•  To promote development that incorporates planning and design measures that reduce the urban heat island effect.

•  To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

10. The proposed development complies with the height of building standard at cl 4.3 of the WLEP, and the floor space ratio (FSR) standard at cl 4.4A of the WLEP.

11. The site is located within an area identified as Class 5 Acid Sulfate Soils, according to the relevant map at cl 6.1(2) of the WLEP, and is also within 500m of land classified otherwise. However, given the significant level difference between the site and the Class 4 land, the proposed development will not lower the watertable by 1m on the adjacent Class 4 land.

12. The proposed development comprises earthworks on a site with pre-existing fill, and excavation in the order of 1500mm below existing levels. I have considered those matters at cl 6.2(3) of the WLEP. On the basis of the description of ground conditions, and design and construction recommendations contained in the Report on Geotechnical Investigation prepared by Crozier dated March 2022, and the Civil Engineering plans prepared by JHA Engineers, I conclude the earthworks for which consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses or features of the surrounding land.

13. On the basis of the Civil Engineering plans, the area calculations shown on the architectural plans prepared by Madeleine Blanchfield Architects (Drawing DA9.01) and the terms of Condition 13 of the agreed conditions of consent, I am satisfied that the development maximises permeable surfaces on the land and includes on-site detention of water and so avoids adverse impacts of stormwater runoff on adjoining properties and receiving waters in accordance with cl 6.15 of the WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The site is identified as land within the Coastal environment area, and the Coastal use area, according to ss 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).

15. In respect of development proposed within the coastal environment area, I have considered those matters to be considered at s 2.10(1), and I am satisfied that the development is designed to avoid those adverse impacts set out at subs 2.10(1).

16. In respect of development proposed within the Coastal use area, I have considered those matters to be considered at subs 2.11(1) and I am satisfied that the development is designed, sited and will be managed to avoid adverse impacts of the sort at subs 2.11(1). I have also taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development, noting agreement between the planning experts on the bulk and scale of the proposal.

17. Relatedly, I am also satisfied that the proposed development is not likely to cause an increased risk of coastal hazards on the site, or on other land, in accordance with s 2.12 of the Hazards SEPP.

18. I have considered whether the land is contaminated in accordance with s 4.6 of the Hazards SEPP, and I accept the statements made on p20 of the Statement of Environmental Effects, prepared by Mersonn Pty Ltd dated December 2021 as to the history of use and occupation on the site.

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

19. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1261351S_04), prepared Integreco Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

20. 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.

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. The Court notes:

1. Waverley Council, as the relevant consent authority, has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. DA-564/2021 to incorporate the plans, drawings and documents listed in Annexure ‘A’ to this agreement (‘Amended Application’).

2. The plans, drawings and documents comprising the Amended Application form part of the Town Planning Joint Expert Report which was filed with the Court on 15 March 2023.

Orders

23. The Court orders that:

1. The Applicant is granted leave to rely on the Amended Application at Annexure ‘A’.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-564/2021 for the demolition of the existing detached dwelling and for the construction of a new dwelling, garage and associated landscaping at 3 Bronte Marine Drive, Bronte (legally known as
   Lot 2 in DP 401217), subject to the conditions of consent in Annexure ‘B’.

……………………

T Horton

Commissioner of the Court

Annexure A (97400, pdf)

Annexure B (326466, pdf)

**********

Decision last updated: 23 March 2023