Galvin v Waverley Council

[2023] NSWLEC 1263

Land and Environment Court

New South Wales

Medium Neutral Citation:

Galvin v Waverley Council [2023] NSWLEC 1263

Hearing dates:

Conciliation conference on 18 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-385/2022 for the alterations and additions to an existing dwelling including the construction of an elevated walkway and deck above the carport to the semi-detached dwelling at 42 Varna Street, Waverley is determined by the grant of consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 37

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

State Environmental Planning Policy (BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Waverley Local Environmental Plan 2012, cll 5.10, 6.1, 6.2, Sch 5

Category:

Principal judgment

Parties:

Hannah Galvin (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
C Cleary (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

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

File Number(s):

2022/358785

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The owner of a semi-detached dwelling on the corner of Varna Street and Carlton Street, Waverley seeks consent for alterations and additions to an existing dwelling, comprising the construction of an elevated walkway and deck above the carport to the semi-detached dwelling at 42 Varna Street, Waverley.

2. To this end, development application No. DA/385/2022 (the DA) was lodged with Waverley Council on 8 September 2022 with the consent of the owner, being the Applicant in these proceedings.

3. The DA was publicly exhibited between 20 September – 4 October 2022, in which one written submission was received in response to the notification. As the DA was otherwise undetermined, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction on 28 November 2022, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The appeal was listed for mandatory conciliation on 18 May 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

5. Prior to the conciliation conference, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the contentions in the matter.

6. On the basis of the amended plans, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

7. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 18 May 2023.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [19].

10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

11. The site is located within the R2 Low Density Residential zone identified by the Waverley Local Environmental Plan 2012 (WLEP) in which dwelling house development is permitted with consent, where consistent with the objectives of the R2 zone that are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.

• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.

• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.

12. The proposed development does not affect development standards in respect of height or floor space ratio that are otherwise compliant.

13. The site is not identified as an item of heritage significance by Sch 5 of the WLEP, and is not within a heritage conservation area. As such, the provision of cl 5.10 of the WLEP do not apply.

14. As the proposal is for works elevated above ground level, cl 6.1 in respect of acid sulfate soils and cl 6.2 in respect of earthworks in the WLEP are likewise not applicable. Relatedly, I consider the question of whether the land is contaminated, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, to have been addressed by a prior consent granted by Waverley Council in February 2022, comprising partial demolition and alterations and additions contained in development application DA-232/2021.

15. As the proposed development comprises development that cannot be fully enclosed, the proposal conforms to the definition found in the Dictionary of the WLEP as ‘BASIX excluded development’ and so a BASIX certificate in terms required by State Environmental Planning Policy (BASIX) 2004 is not required.

Conclusion

16. 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.

17. 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.

18. The Court notes that:

1. Waverley Council, as the relevant consent authority, has agreed under s.37(1) of the EPA Regulation to the Applicant amending Development Application No. DA-385/2022 in accordance the following documents:

1. Architectural drawings (Rev B), prepared by Prime Design Studios dated 29 April 2023; and

2. Acoustic Statement, prepared by Acoustic Logic dated 2 May 2023 (the Amended Application).

2. The Amended Application was filed with the Court on 18 May 2023.

Orders

19. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA-385/2022 for the alterations and additions to an existing dwelling including the construction of an elevated walkway and deck above the carport to the semi-detached dwelling at 42 Varna Street, Waverley is determined by the grant of consent subject to the conditions of consent in Annexure A.

T Horton

Commissioner of the Court

358785.22 Annexure A (283499, pdf)

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Decision last updated: 31 May 2023