Galea v Waverley Council

[2022] NSWLEC 1460

Land and Environment Court

New South Wales

Medium Neutral Citation:

Galea v Waverley Council [2022] NSWLEC 1460

Hearing dates:

Conciliation conference on 1 June 2022

Date of orders:

02 September 2022

Decision date:

02 September 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

1) The appeal is upheld.

2) The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 seeking a variation of the development standard for motorcycle parking spaces set out in clause 30(1)(h) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 is upheld

3) Development consent is granted to development application DA-276/2021 for the demolition of the existing structures and construction a 4 storey boarding house incorporating 15 boarding rooms and a basement for storage and bicycle parking, subject to the conditions set out in Annexure A

Catchwords:

DEVELOPMENT APPEAL – boarding house —conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 30, 30A

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Waverley Local Environmental Plan 2012 cl 4.6

Category:

Principal judgment

Parties:

Julian Galea (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/282549

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council (the Respondent) of Development Application No. DA-276/2021 for the demolition of existing structures and construction of a four (4) storey boarding house containing 15 boarding rooms a communal roof terrace and a basement for storage and bicycle parking at 124 Bondi Road, Bondi (the Site).

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 held on MS teams on 1 June 2021, and at which I presided.

3. Prior to 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 development consent to the development application, subject to conditions.

4. A signed agreement and conditions of consent prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 1 June 2022.

5. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development, subject to amended plans prepared by DesignInc and dated 13 May 2022, and a plan of management prepared by Minto Planning Services, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act.

Satisfaction of Jurisdiction

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. Landowners’ consent was provided by the owner of the land at the time of the lodgement of the Development Application.

2. The proposed development satisfies cl 26 of State Environmental Planning Policy (Affordable Rental Housing) 2004 (SEPP ARH) as the land is zoned R2 Low Density Residential pursuant to Waverley Local Environmental Plan 2012 (WLEP). Accordingly, SEPP ARH applies.

3. The parties agree, and I accept, that the site is located within 400m walking distance of bus stops in Bondi Road, Bondi with reliable connections to the City and Bondi Junction and that meets the requirements of cl 27 of SEPP ARH.

4. The proposed development satisfies the following standards detailed at cl 30 of SEPP ARH:

• At least one communal living room will be provided in the proposed development.

• No boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

• No boarding room will be occupied by more than 2 adult lodgers.

• Adequate bathroom and kitchen facilities will be available within the proposed development for the use of each lodger.

• A boarding room or on site dwelling will be provided for a boarding house manager.

• At least one parking space will be provided for a bicycle for every 5 boarding rooms.

5. Clause 30(1)(h) of the SEPP ARH requires that one parking space for a motorcycle must be provided for every five boarding rooms. The proposed development contravenes this standard as no motorbike parking is provided. A written cl 4.6 variation request dated 25 May 2022 has been prepared by Minto Planning Services (document 2 in the schedule to the Applicant’s amended notice of motion filed in Court and upheld on 26 May 2022).

6. The Council considers, and the Court is satisfied, that the cl 4.6 written variation request relating to the development application as amended seeking to justify the contravention of the development standard is well founded and that compliance with the development standard is unreasonable and unnecessary because there are sufficient environment planning grounds, particular to the circumstances of the proposed development and the subject site to justify the departure in this case. Further, given the frequency of public transport near to the site, the development achieves on balance an appropriate environmental outcome having regard to all of the circumstances.

7. I accept the agreement of the parties that the development, as modified, is compatible with the character of the local area, consistent with cl 30A of SEPP ARH.

8. Consideration has been given to whether the Site is contaminated as required by s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021. Given the historical use of the site for residential purposes, I am satisfied from the evidence that the land is not contaminated.

9. The original application was notified in accordance with the relevant development control plan and the submissions have been considered by the Respondent Council.

Disposal of proceedings

9. 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.

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

Orders

11. The Court Orders that:

(1) The appeal is upheld.

(2) The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 seeking a variation of the development standard for motorcycle parking spaces set out in clause 30(1)(h) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 is upheld.

(3) Development consent is granted to development application DA-276/2021 for the demolition of the existing structures and construction a 4 storey boarding house incorporating 15 boarding rooms and a basement for storage and bicycle parking, subject to the conditions set out in Annexure A.

I certify that this and the preceding 4 pages are a true copy of my reasons for judgment.

……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A (415122, pdf)

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Decision last updated: 02 September 2022