Flynn v Waverley Council

[2024] NSWLEC 1622

Land and Environment Court

New South Wales

Medium Neutral Citation:

Flynn v Waverley Council [2024] NSWLEC 1622

Hearing dates:

Conciliation conference on 23 September 2024; 2 October 2024

Date of orders:

08 October 2024

Decision date:

08 October 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA-465/2022 for the construction of a hardstand parking space within Utility Lot 7 with a driveway to access the parking spaces over common property, sandstone retaining walls, excavation and fill to level the portion of Lot 7 proposed as a car space, a new angled vehicular crossover, and landscaping within Lot 7 at 19A Brown Street, Bronte (Lot 21 in DP 19554) subject to conditions contained in Annexure ‘A’.

Catchwords:

APPEAL – development application – construction of a hardstand parking space – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Waverley Local Environmental Plan 2012, cl 6.2

Texts Cited:

Waverley Community Development Participation and Consultation Plan

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Ann Flynn (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Flynn (Self-represented) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/96420

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern an appeal against the conditions imposed by Waverley Council on the development consent to DA-465/2022 (DA) for a hardstand parking space within Lot 7 at 19A Brown Street, Bronte (Lot 21 in DP 19554) (the site) and associated vehicular access.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 23 September 2024. I presided over the conciliation conference.

3. Following the conciliation conference, the applicant provided the Council with additional information from its traffic engineer, Oleg Sannikov of TEF Engineering, in the form of updated swept path diagrams and a statement concerning pedestrian and road users’ safety associated with entering and exiting the site.

4. The Council is now satisfied that the proposed hardstand car space can be used safely and has agreed to the deletion of the conditions numbered deferred commencement conditions 1 and 2; conditions 2(a) and (b), 11, 12, 14 and 30; the amendment of conditions 1(f)-(h) and 29 and the addition of a new condition AD6. As such, the parties seek resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

6. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in the joint jurisdictional submission annexed to the parties’ s34 written agreement.

7. After a consideration of the parties’ submissions and the evidence I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following:

8. The DA was lodged with the Council on 28 October 2022 and was made with the consent of the owner of the site (Tab 1 of the Class 1 Application).

9. The DA was notified for 14 days between 16 November and 2 December 2022 in accordance with the Waverley Community Development Participation and Consultation Plan. A total of five (5) unique submissions were received.

10. The parties have considered the submissions received in relation to the DA including those taken onsite at the s34 and are satisfied that they have been addressed by the terms of the consent.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

11. The DA was referred to Ausgrid pursuant to s 2.48 of the TI SEPP as it proposes development within 5m of an exposed overhead electricity power line.

12. Ausgrid provided advice regarding underground cables in the vicinity of the development, which are included as an advisory note in the conditions of consent.

Waverley Local Environmental Plan 2012 (LEP)

Zoning

13. The site is zoned R3 Medium Density Residential under the LEP. The proposal is defined as ancillary to a residential flat building, which is permitted with consent in the R3 zone. The parties submit, and I accept that the proposed development is consistent with the objectives of the R3 zone.

Clause 6.2 Earthworks

14. The DA seeks consent for minor earthworks associated with the development of the hardstand car space at the site. The parties have considered the relevant matters under cl 6.2(3) of the LEP and agreed that the proposal is satisfactory.

Waverley Development Control Plan 2012 (DCP)

15. The DCP applies to the site. The parties submit and I accept that the proposed development is suitable having regard to the relevant provisions in the DCP.

Notation and orders

16. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

17. The Court notes that Waverley Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending DA-465/2022 in accordance with the document listed below:

1. Traffic Safety Statement prepared by TEF Consulting dated 26 September 2024.

18. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA-465/2022 for the construction of a hardstand parking space within Utility Lot 7 with a driveway to access the parking spaces over common property, sandstone retaining walls, excavation and fill to level the portion of Lot 7 proposed as a car space, a new angled vehicular crossover, and landscaping within Lot 7 at 19A Brown Street, Bronte (Lot 21 in DP 19554) subject to conditions contained in Annexure ‘A’.

…………………..

S Dixon

Senior Commissioner of the Court

Annexure A (256563, pdf)

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