Forte Properties Pty Ltd v Waverley Council

[2022] NSWLEC 1232

Land and Environment Court

New South Wales

Medium Neutral Citation:

Forte Properties Pty Ltd v Waverley Council [2022] NSWLEC 1232

Hearing dates:

Conciliation conference on 25 March 2022; 8 April 2022

Date of orders:

03 May 2022

Decision date:

03 May 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $14,000, to be paid within 28 days of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA-40/2021 for substantial alterations and additions to the existing shop top housing development to provide four new studio apartments above two ground floor commercial tenancies and construction of a new rear garage at 118 Macpherson Street, Bronte (Lot 7 in Deposited Plan 78510), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – substantial alterations and additions to an existing shop top housing development to provide four new studio apartments above two ground floor commercial tenancies and construction of a new rear garage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

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, Ch 4 cl 4.6

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, Sch 5

Texts Cited:

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Forte Properties Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/325754

Judgment

1. These proceedings are an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA) against Waverley Council’s refusal of development application no. DA-40/2021 (DA) for substantial alterations and additions to the existing shop top housing development at 118 Macpherson Street, Bronte (Lot 7 in Deposited Plan 78510) (site).

2. The proposal comprises four new studio apartments above two ground floor commercial tenancies and the construction of a new rear garage.

3. To resolve the issues 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 held on 25 March 2022. I was the presiding commissioner.

4. At the conference, the parties reached agreement as to the terms of a decision that would be acceptable to the parties. The decision involves the Court upholding the appeal and granting development consent to an amended development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions. In this case the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended development application subject to the agreed conditions of consent in Annexure A.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised and the parties have addressed these matters in a joint jurisdictional submission. Having considered the parties submissions and the evidence before the Court I am satisfied about the following jurisdictional matters:

EPA Act and Environmental Planning and Assessment Regulation 2000 (Regulations)

7. I am satisfied on the evidence filed that the applicant is an owner of the site and has obtained consent from the other owners of the site to make the DA. Therefore, the applicant was entitled to lodge the DA pursuant to cl 49 of the Regulations.

8. It is to be noted that the DA was notified and publicly exhibited from 9 to 23 February 2021 in accordance with the EPA Act and the Council otherwise provided two notices of the proposed amendments to the objectors (dated 23 March 2022 and 1 April 2022). The submissions received in response to public notification are annexed to the jurisdictional statement filed with the Court and have been taken into account in the preparation of the amended plans and the proposed conditions of consent.

State Environmental Planning Policy (Resilience & Hazards) 2021 (Resilience & Hazards SEPP)

9. The provisions of Ch 4 of the Resilience & Hazards SEPP require the consent authority to consider whether the site is contaminated. The evidence demonstrates that consideration has been given as to whether the site is contaminated as required by cl 4.6 of the Resilience & Hazards SEPP. In that regard, the Statement of Environmental Effects filed with the DA (Supplementary SEE) states that the site has historically been used for residential and commercial purposes and there is no known history of contamination applicable to the site and no known use of the property that would suggest potential contamination.

10. Accordingly, I am satisfied that the site is suitable for the proposed development in accordance with the Resilience & Hazards SEPP.

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

11. The DA was accompanied by BASIX Certificates for the proposed studios. More recently the BASIX Certificates have been updated in accordance with the amended development. There is no impediment to the grant of consent based on the BASIX SEPP.

Waverley Local Environmental Plan 2012 (LEP)

12. The site is zoned B1 Neighbourhood Centre under the LEP. Development for the purposes of shop top housing (and, as such the amended development) is permissible with consent in the B1 zone.

13. The amended development has been assessed against the relevant provisions of the LEP. The evidence is that the amended development achieves the aims and objectives of the LEP, including the objectives of the B1 zone: cl 2.3(2). The amended development also complies with the maximum height and floor space ratio (FSR) development standards, cll 4.3 and 4.4 of the LEP, respectively. In accordance with those provisions, the maximum height of any building on the site is not to exceed 9m and the maximum FSR for a building on the site is not to exceed 1:1.

14. The existing building on the site is listed in Sch 5 of the LEP as an item of local heritage significance (item I323). A Heritage Impact Statement (HIS) accompanied the DA. Council’s Heritage Architect reviewed the HIS and was satisfied that the DA could be approved subject to conditions. As required, I have considered the effect of the amended development on the heritage significance of the item as required by cl 5.10 of the LEP. Based on the heritage evidence and my observations at the site view I am satisfied that the amended development will not adversely affect the heritage significance of the item.

15. The site is marked as Class 5 on the Acid Sulfate Soils Map under the LEP and is within 500m of Class 4 land. The amended development proposes no excavation, and I accept that the development is not likely to lower the water table below 1 metre AHD on that adjacent Class 4 land. Therefore, I accept that cl 6.1 of LEP does not apply.

16. The amended development proposes earthworks that are limited to footings and minor site works. Clause 6.2(3) of LEP specifies certain matters that must be considered prior to the grant of development consent. These matters are addressed at p 25 of the Applicant’s Supplementary SEE at Tab 6 of the Class 1 Application. After a consideration of those matters, I accept that there is no basis to refuse consent on the grounds of cl 6.2(3).

17. The site is subject to cl 6.8 of the LEP, as it is land coloured light blue and marked “1” on the Key Sites Map: see cl 6.8(2). The proposed retail tenancies will not exceed 500sqm, and therefore cl 6.8 does not operate to prohibit the grant of development consent.

Waverley Development Control Plan 2012 (DCP)

18. The Council submits that amended development has been assessed against the provisions of the DCP and that the amended development complies with the controls and/or achieves the objectives of the controls contained within the DCP.

19. I accept that the amended development is considered acceptable with respect to the DCP.

Suitability of the site

20. The Council submits that the likely impacts of, and the suitability of the site for the amended development have been considered as well as all submissions made in accordance with the EPA Act and the Regulations. The Council has formed the view that the amended development will not result in unacceptable adverse environmental impacts and is considered to be in the public interest. While I am not dealing with the merits of the amended application it is to be noted that the Council has no issue in that regard.

Conclusion

21. 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 that decision.

22. The Court notes that:

1. Waverley Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the applicant amending development application no. DA-40/2021 in accordance with the following amended plans and documents:

1. Architectural and Landscape Plans prepared by Bureau SRH Architects:

Drawing No.	Drawing Title	Date
DA000, Rev 08	Cover Page	28 March 2022
EX001, Rev 08	Site Analysis Plan	28 March 2022
EX101, Rev 08	Ground Existing	28 March 2022
EX102, Rev 08	First Floor Existing	28 March 2022
EX103, Rev 08	Roof Plan Existing	28 March 2022
EX201, Rev 08	Elevations Existing	28 March 2022
EX202, Rev 08	Elevations Existing	28 March 2022
EX301, Rev 08	Sections Existing	28 March 2022
DA001, Rev 08	Ground Floor Demolition	28 March 2022
DA002, Rev 08	First Floor Demolition	28 March 2022
DA003, Rev 08	Roof Plan Demolition	28 March 2022
DA100, Rev 08	Site Plan	28 March 2022
DA101, Rev 08	Proposed Ground Floor	28 March 2022
DA102, Rev 08	Proposed First Floor	28 March 2022
DA103, Rev 08	Proposed Roof Plan	28 March 2022
DA201, Rev 08	Proposed Elevations	28 March 2022
DA202, Rev 08	Proposed Elevations	28 March 2022
DA301, Rev 08	Proposed Sections	28 March 2022
DA601, Rev 08	Area Diagrams	28 March 2022
DA603, Rev 02	Unit 1 & 2 Solar and Cross Vent Amenity	28 March 2022
EX501, Rev 08	Exist Shadow Diagram June 21 9AM	28 March 2022
EX502, Rev 08	Exist Shadow Diagram June 21 10AM	28 March 2022
EX503, Rev 08	Exist Shadow Diagram June 21 11AM	28 March 2022
EX504, Rev 08	Exist Shadow Diagram June 21 12PM	28 March 2022
EX505, Rev 08	Exist Shadow Diagram June 21 1PM	28 March 2022
EX506, Rev 08	Exist Shadow Diagram June 21 2PM	28 March 2022
EX507, Rev 08	Exist Shadow Diagram June 21 3PM	28 March 2022
DA501, Rev 08	Shadow Diagram June 21 9AM	28 March 2022
DA502, Rev 08	Shadow Diagram June 21 10AM	28 March 2022
DA503, Rev 08	Shadow Diagram June 21 11AM	28 March 2022
DA504, Rev 08	Shadow Diagram June 21 12PM	28 March 2022
DA505, Rev 08	Shadow Diagram June 21 1PM	28 March 2022
DA506, Rev 08	Shadow Diagram June 21 2PM	28 March 2022
DA507, Rev 08	Shadow Diagram June 21 3PM	28 March 2022
DA510, Rev 08	View From The Sun June 21	28 March 2022
DA511, Rev 08	View From The Sun June 21	28 March 2022
DA701, Rev 02	Landscape Plan	28 March 2022

2. Kitchen Exhaust Concept Design prepared by Torinex Consulting Engineers:

Drawing No.	Drawing Title	Date
000, Rev 3	Mechanical Services Cover Sheet	10 March 2022
101, Rev 3	Mechanical Services Ground Floor	10 March 2022
102, Rev 3	Mechanical Services First Floor	10 March 2022
103, Rev 4	Mechanical Services Roof	10 March 2022
201, Rev 4	Mechanical Services Roof Section	10 March 2022

3. Updated BASIX Certificates prepared by Sustainability-Z Pty Ltd dated 31 March 2022:

1. A399438_02;

2. A399441_02;

3. A399446_02; and

4. A399447_02.

2. The amended development application has been uploaded onto the NSW planning portal.

3. The applicant has filed the amended development application with the Court.

23. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $14,000, to be paid within 28 days of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA-40/2021 for substantial alterations and additions to the existing shop top housing development to provide four new studio apartments above two ground floor commercial tenancies and construction of a new rear garage at 118 Macpherson Street, Bronte (Lot 7 in Deposited Plan 78510), subject to the conditions of consent in Annexure A.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (344018, pdf)

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Decision last updated: 03 May 2022