Fredless Investments Pty Ltd v Waverley Council

[2020] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fredless Investments Pty Ltd v Waverley Council [2020] NSWLEC 1362

Hearing dates:

Conciliation conference on 7 August 2020

Date of orders:

13 August 2020

Decision date:

13 August 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is given leave to amend the development application and rely upon the revised plans and documents in the proceedings referred to in operational Condition 1 in Annexure A.

(2) The Applicant is to pay the Council’s costs thrown away by reason of the amendment under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000 within 28 days of the date of these orders being formally made by the Court.

(3) The appeal is upheld.

(4) Development Consent is granted to DA-7/2019 for the demolition of existing building and garages and construction of shop top housing development with integrated parking at 515 Old South Head Road, Rose Bay, 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

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

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

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012

Texts Cited:

Apartment Design Guide, NSW Department of Planning and Environment, 2015

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Fredless Investments Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
P Clarke (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/395622

Publication restriction:

No

Judgment

1. COMMISSIONER: Fredless Investments Pty Limited (the Applicant) has appealed the refusal by Waverley Council (the Respondent) of its development application DA-7/2019 for the demolition of existing building and garages and construction of shop top housing development with integrated parking (the Proposed Development) at 515 Old South Head Road, Rose Bay (the Subject Site).

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

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 7 August 2020, and I presided over that conciliation conference.

5. At the conciliation 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 development application, subject to conditions.

6. 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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. the development application was made with the consent in writing of Andrew Simon and Hady Simon, directors of the Applicant company, which is the owner of the land to which the application relates;

2. the development works for the application are for the purpose of shop top housing, which is a permissible use in the B4 Mixed Use Zone, pursuant to the Waverley Local Environmental Plan 2012 (WLEP);

3. the amended written request pursuant to cl 4.6(3) of WLEP adequately addresses the matters required to be demonstrated in respect of the height non-compliance;

4. the development (as amended) does not contravene any objective or control (where relevant) in the Waverley Development Control Plan 2012, or any other applicable environmental planning instrument, particularly in relation to parking controls and suitability;

5. the development (as amended) satisfies the requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and associated Apartment Design Guide, and an accompanying verification statement and documentation provided in satisfaction of that instrument and requirements under the Environmental Planning and Assessment Regulation 2000 (Regulation) has been agreed to by Council;

6. the amended plans are accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Regulation;

7. the development (as amended) complies with cl 6.1(4) of the WLEP as the Subject Site is identified as Class 5 acid sulfate soils on the Acid Sulfate Soils Map but has been the subject of a preliminary assessment confirming that an acid sulfate soils management plan is not required, with Council confirming that assessment;

8. the development (as amended) complies with cl 6.2 (Earthworks) in the WLEP following consideration of the matters set out in cl 6.2(3);

9. the development (as amended) complies with cll 6.3 to 6.11 of WLEP, as the Subject Site is either not on land to which these clauses apply or the amended proposal does not reach the required height; and

10. consideration has been given as to whether the subject land is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. The subject land has been used for residential, retail and commercial purposes and does not require any remediation.

8. Having considered the advice of the Parties, provided above at [7], I agree that 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. I am further 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 under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

11. The Court orders that:

1. The Applicant is given leave to amend the development application and rely upon the revised plans and documents in the proceedings referred to in operational Condition 1 in Annexure A.

2. The Applicant is to pay the Council’s costs thrown away by reason of the amendment under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000 within 28 days of the date of these orders being formally made by the Court.

3. The appeal is upheld.

4. Development Consent is granted to DA-7/2019 for the demolition of existing building and garages and construction of shop top housing development with integrated parking at 515 Old South Head Road, Rose Bay, subject to the conditions in Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (330245, pdf)

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Decision last updated: 13 August 2020