Dowse v Waverley Council

[2022] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dowse v Waverley Council [2022] NSWLEC 1260

Hearing dates:

Conciliation conference on 16 and 17 May 2022

Date of orders:

24 May 2022

Decision date:

24 May 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1) The Appeal is upheld.

2) The development application DA-404/2021 for alterations and additions to an existing dwelling including the addition of an attic level at 77 Fletcher Street, Tamarama is approved, subject to the conditions attached at Annexure ‘A’.

Catchwords:

APPEAL – development application – alterations and additions to a dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

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

Waverley Local Environmental Plan 2012 cll 4.3, 4.4, 6.2

Category:

Principal judgment

Parties:

Jake Dowse (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
T To (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Garland Hawthorn Brahe (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/354030

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to a dwelling house at 77 Fletcher Street, Tamarama, which was lodged with Waverley Council on 29 September 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal 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 commenced on 16 May 2022. 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. The agreement was subsequently filed on 18 May 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments made in the amended development application reduce the extent of the upper level extensions and balconies, include privacy measures, and include the filling of sub-terranean spaces that previously formed part of a separate development consent.

4. 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 Statement of Reasons that sets out the jurisdictional matters and the basis for the parties reaching an agreement.

5. 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 R3 Medium Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• Based on the updated survey following works to restore the ground level to natural ground level, the proposal complies with the height development standard under cl 4.3 of the WLEP.

• The proposed development includes the filling of subterranean spaces that are currently used as part of the existing dwelling, and the resulting floor space in the proposed development complies with the floor space ratio development standard under cl 4.4 of the WLEP.

• Clause 6.2 of the WLEP concerns earthworks and applies to the site, however given the nature of the development only cl 6.2(3)(e) is relevant. Condition 4 of Part B of the conditions of consent requires that fill to be used, and the manner of filling, must be inspected and approved by Council’s compliance staff prior to the commencement of any filling work and that the fill is to be inspected prior to the release of the construction certificate. This will ensure that the fill material is appropriately sourced.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

6. I also note that the development application was notified and submissions were made by a number of local residents. The parties agree that the amendments made to the development application improve solar access for adjacent properties, and that solar access to the photovoltaic panels located on the roof of the neighbour to the west will be retained.

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 for the purposes of clause 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending development application DA-404/2021 (Amended DA);

2. The Applicant has filed the Amended DA with the Court on 17 May 2022; and

3. The Amended DA has been uploaded to the NSW Planning Portal.

Orders

10. The Court orders that:

1. The Appeal is upheld.

2. The development application DA-404/2021 for alterations and additions to an existing dwelling including the addition of an attic level at 77 Fletcher Street, Tamarama is approved, subject to the conditions attached at Annexure ‘A’.

……………………….

Joanne Gray

Commissioner of the Court

(Annexure A) (292609, pdf)

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Decision last updated: 24 May 2022