Derakhshandegan v Waverley Council

[2022] NSWLEC 1423

Land and Environment Court

New South Wales

Medium Neutral Citation:

Derakhshandegan v Waverley Council [2022] NSWLEC 1423

Hearing dates:

Conciliation conference on 21 and 30 June, and 8 July 2022

Date of orders:

24 August 2022

Decision date:

24 August 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the plans and documents listed under Condition A.1(a) of Annexure A.

(2) The Applicant shall pay the Respondent’s costs pursuant to section 8.15(3); payment to be made within 28 days of these orders. Environmental Planning and Assessment Act 1979 in the sum of $8,000.00.

(3) The Applicant’s written request, prepared by ABC Planning Pty Ltd and dated July 2022, made pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 (WLEP) to vary the floor space ratio development standard at cl 4.4 of WLEP is upheld.

(4) The Appeal is upheld.

(5) Development application number DA-496/2021, lodged on 18 November 2021, for demolition of dwelling and construction of two x three storey detached dwelling houses each with own swimming pool, integrated parking, tree removal and Torrens title subdivision at 9 Blandford Avenue, Bronte, is approved subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.14

Environmental Planning and Assessment Regulation 2000, cll 55, 77

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, ss 2.8, 2.9, 2.10, 2.11, 2.12, 4.6

Waverley Local Environmental Plan 2012, cll 2.3, 4.1A, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (April 2021)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Kivan Derakhshandegan (Applicant)
Waverley Council (Respondent)

Representation:

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

Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/56002

Publication restriction:

No

Judgment

1. COMMISSIONER: Kivan Derakhshandegan (the Applicant) has appealed the deemed refusal by Waverley Council (the Respondent) of his development application number DA-496/2021 seeking consent for the demolition of an existing dwelling and the construction of 2 three-storey detached dwelling houses, each with own swimming pool, integrated parking, tree removal and Torrens title subdivision (the Proposed Development) at 9 Blandford Avenue, Bronte (the Subject Site).

2. The appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was notified on 26 November 2021 for a period of 14 days in accordance with the Respondent’s notification policy, and 19 submissions were received in response to that notification.

4. A site inspection was undertaken at the commencement of the proceedings, consistent with the Court’s COVID-19 Pandemic Arrangements Policy. Two objectors provided oral submissions during the site view in relation to the appeal.

5. On 21 and 30 June, and 8 July, 2022 the Parties participated in a conciliation conference undertaken via Microsoft Teams. At that conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s modification application, subject to conditions.

6. Under s 34(3) of the Land and Environment Court Act 1979 (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.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), incorporating the provisions of the former and now repealed State Environmental Planning Policy (Coastal Management) 2018 and State Environmental Planning Policy No 55 – Remediation of Land:

1. the Subject Site is not identified as a ‘coastal use area’, a ‘coastal vulnerability area’ or ‘coastal wetlands and littoral rainforest area’ pursuant to Chapter 2 of SEPP R&H, and ss 2.8, 2.9, 2.10, 2.11 and 2.12 of Chapter 2 of SEPP R&H do not apply in these circumstances.

2. in relation to the provisions of s 4.6 of SEPP R&H, the Respondent has confirmed, and I am satisfied, that the historical use of the site for residential purposes ensures that contamination is unlikely. Section 4.6 is satisfied.

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), and pursuant to cl 3(1)(a) of that SEPP, the Applicant has provided BASIX Certificates (certificate no 1247066S_02 and 1247080S_02) confirming compliance with the relevant regulation and the conditions of consent require compliance with this certificate;

3. in relation to the provisions of Waverley Local Environmental Plan 2012 (WLEP):

1. the Subject Site is zoned R2 – Low Density Residential under the provisions of cl 2.3 of WLEP and development for the purposes of detached dwelling houses is permissible in the R2 Zone;

2. the Proposed Development meets the definition of ‘dwelling house’ within the dictionary of WLEP that being two detached buildings on separate lots constructed so as to each be used as separate domiciles;

3. clause 2.3(2) of WLEP requires that regard be had to the R2 zone objectives when determining the Applicant’s development application, in relation to which:

1. the objectives of the R2 Zone are 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.

2. the Parties advise, and I am satisfied, that regard has been had to the objectives of the zone in the evaluation and determination of the Applicant’s development application including through the Applicant’s provision of an assessment against those objectives within its Statement of Environmental Effects prepared by ABC Planning Pty Ltd dated October 2021;

4. clause 2.7 of WLEP provides that demolition is permissible with consent and in relation to this:

1. demolition is proposed by the Applicant as part of its Proposed Development; and

2. the proposed demolition works have been considered and the Parties’ agreed conditions include specific conditions in response to the consent of the proposed demolition works;

5. clause 4.1A of WLEP provides that any lot resulting from a subdivision of the Subject Site is not to have a lot size less than 325m², and the proposed subdivision of the Subject Site results in two lots with site areas of 423.8m² (Lot A) and 356.4 m² (Lot B) in compliance with cl 4.1A;

6. Clause 4.3 provides that the Subject Site is subject to a maximum height of building 8.5m development standard, and the Proposed Development, as amended, is compliant with that standard as it will have a maximum building height of 8.4m;

7. clause 4.4 provides that the Subject Site (prior to subdivision) is subject to a maximum floor space ratio (FSR) of 0.5:1, and the Proposed Development, as amended, has a FSR of 0.763:1 pre subdivision. In relation to this, the Applicant has provided a written request, prepared by ABC Planning Pty Ltd (dated 15 July 2022) pursuant to the provisions of cl 4.6 of WLEP, to contravene the development standard and the Parties advise, and I am satisfied, that:

1. the Applicant’s written request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the appeal as the Proposed Development achieves the objectives of the standard notwithstanding the exceedance for reasons provided within the request, which I adopt, and in compliance with the provisions of cl 4.6(3)(a) of WLEP;

2. the Applicant’s written request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard, for reasons provided within the request, which I adopt, and in compliance with the provisions of cl 4.6(3)(b) of WLEP;

3. the Proposed Development will be in the public interest because it is consistent with the objectives of the FSR standard in cl 4.4 of WLEP and the objectives for development within the Subject Site’s R2 zoning;

4. the Proposed Development is a local development with a non-compliance with cl 4.4 of WLEP that does not result in any adverse environmental impacts and the breach of the development standard is adequately justified,

5. the contravention of standard in cl 4.4 of WLEP does not raise any matter of significance for state or regional planning and in the specific circumstances of this appeal there is no public benefit in maintaining the standard;

6. noting these points, and pursuant to the provisions of s 8.14(3) of the EP&A Act, the Court may determine the appeal whether or not the concurrence of the Planning Secretary as required under cl 4.6(4(b) has been granted; and

7. the Applicant’s written request to contravene the development standard in cl 4.4 of WLEP should be upheld;

4. concerning the provisions of cl 5.10 of WLEP:

1. the Subject Site is not identified as a heritage item nor has any aboriginal object been located on the Subject Site;

2. the Subject Site is not located within a heritage conservation area;

3. the Subject Site is not located within the vicinity of a heritage item or a heritage conservation area; and

4. the provisions of cl 5.10(2) of WLEP have no application in the evaluation of the Proposed Development, and a heritage assessment as provided for under the provisions of cl 5.10(5) is not required prior to the grant of consent to the Applicant’s development application;

5. in regard to the provisions of cl 6.1 of WLEP, the Subject Site is not identified as being affected by Acid Sulfate Soils;

6. in regard to the provisions of cl 6.2 of WLEP, the Proposed Development involves excavation to a maximum depth of approximately 8.44m to accommodate a proposed garage parking and entranceway, and the Parties have confirmed, and I am satisfied, that:

1. the Applicant’s has provided a letter prepared by Jarett Mones, of JK Geotechnics, dated 6 June 2022 in relation to potential earthworks impacts;

2. the Proposed Development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of surrounding development; and

3. the matters in cl 6.3(3) of WLEP have been considered prior to the grant of consent to the Proposed Development;

7. in relation to the provisions of Waverley Development Control Plan 2012 (WDCP), the Parties have confirmed, and I am satisfied, that:

1. as documented within the Applicant’s Statement of Environmental Effects prepared by ABC Planning Pty Ltd (dated October 2021) the provisions of WDCP as are relevant to the Proposed Development have been taken into consideration; and

2. the Proposed Development either complies with the relevant controls within WDCP or it achieves the objectives of those controls such that it represents a reasonable alternative solution to compliance with the controls, and so merits the application of flexibility in the application of those controls as provided for under the provisions of s 4.15(3A) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act including in relation to the submission of the objector which is a relevant consideration under s 4.15(1)(d) of that Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

9. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

12. The Court notes:

1. that the Applicant has amended Development Application No DA-496/2021 with the agreement of Waverley Council as the relevant consent authority (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) to incorporate the following amended plans and additional information:

Architectural plans

Drawing ID	Drawing Title	Revision	Date
DA000	COVER PAGE	04	No date
DA001	3D MONTAGE	02	No date
DA002	SITE ANALYSIS	02	07.06.2022
DA003	DEMOLITION PLAN	02	07.06.2022
DA004	PROPOSED SUBDIVISION PLAN	02	07.06.2022
DA100	STREET LEVEL FLOOR PLAN	03	07.06.2022
DA101	HOUSE A – LEVEL 1 FLOOR PLAN	03	07.06.2022
DA102	HOUSE A – LEVEL 2 FLOOR PLAN	05	06.07.2022
DA103	HOUSE A – LEVEL 3 FLOOR PLAN	04	27.06.2022
DA104	HOUSE A – LEVEL 4 FLOOR PLAN	03	07.06.2022
DA105	HOUSE B – LEVEL 1 FLOOR PLAN	05	06.07.2022
DA106	HOUSE B – LEVEL 2 FLOOR PLAN	05	06.07.2022
DA107	HOUSE B – LEVEL 3 FLOOR PLAN	04	27.06.2022
DA108	ROOF PLAN	04	27.06.2022
DA200	NORTH-EAST ELEVATION	05	06.07.2022
DA201	ELEVATIONS	04	27.06.2022
DA202	SOUTH WEST ELEVATION	05	06.07.2022
DA203	ELEVATIONS	05	06.07.2022
DA300	SECTION A	05	06.07.2022
DA301	SECTION B	02	06.07.2022
DA400	SHADOW DIAGRAMA	05	06.07.2022
DA401	SHADOW DIAGRAMS	04	27.06.2022
DA410	VIEWS FROM THE SUN	04	06.07.2022
DA500	HOUSE A AREA CALCULATION	05	06.07.2022
DA501	HOUSE B AREA CALCULATION	05	06.07.2022
DA502	SITE AREA CALCULATION	03	07.06.2022
DA503	INDIVIDUAL SITE AREA CALCULATION	03	07.06.2022
DA600	MATERIAL SCHEDULE	01	26.10.2021
DA700	VIEW LOSS ANALYSIS	01	27.06.2022

Stormwater plans

Drawing Number	Drawing Title	Revision	Date
C00.01	GENERAL NOTES	D	24.05.21
C01.01	SEDIMENT & EROSION CONTROL PLAN	D	24.05.21
C01.02	SEDIMENT & EROSION CONTROL DETAILS	D	24.05.21
C02.01	STORMWATER DRAINAGE PLAN	D	24.05.21
C02.02	BASEMENT DRAINAGE PLAN	D	24.05.21
C02.03	STORMWATER DETAILS SHEET 1	D	24.05.21
C02.04	STORMWATER DETAILS SHEET 2	D	24.05.21
C02.05	STORMWATER DETAILS SHEET 3	D	24.05.21
C02.06	STORMWATER DETAILS SHEET 4	D	24.05.21
C03.01	EXTERNAL CATCHMENT PLAN	D	24.05.21

• Waverley Council Development Application – Stormwater On-site Detention Checklists for House A and House B

• Letter by Ben Carruthers from Engineering Studio Pty Ltd, dated 24 May 2022

• Geotechnical Investigation prepared by JK Geotechnics, dated 3 June 2022

• Letter by Jarett Mones from JK Geotechnics, dated 6 June 2022

• Clause 4.6 request in relation to clause 4.4 of the Waverley Local Environmental Plan 2012 (floor space ratio) prepared by ABC Planning Pty Ltd dated July 2022.

2. the Amended Development Application was lodged on the NSW Planning Portal on 12 July 2022, and the amended plans were filed with the Court on 3 August 2022.

Orders

13. The Court orders that:

1. the Applicant is granted leave to rely on the plans and documents listed under Condition A.1(a) of Annexure A;

2. the Applicant shall pay the Respondent’s costs pursuant to section 8.15(3) Environmental Planning and Assessment Act 1979 in the sum of $8,000.00; payment to be made within 28 days of these orders.

3. The Applicant’s written request, prepared by ABC Planning Pty Ltd and dated July 2022, made pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 (WLEP) to vary the floor space ratio development standard at cl 4.4 of WLEP is upheld.

4. The Appeal is upheld;

5. Development application number DA-496/2021, lodged on 18 November 2021, for demolition of dwelling and construction of two x three storey detached dwelling houses each with own swimming pool, integrated parking, tree removal and Torrens title subdivision at 9 Blandford Avenue, Bronte, is approved subject to the conditions in Annexure ‘A’

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (348822, pdf)

**********

Decision last updated: 24 August 2022