Gavancorp Pty Limited v Waverley Council

[2022] NSWLEC 1396

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gavancorp Pty Limited v Waverley Council [2022] NSWLEC 1396

Hearing dates:

Conciliation conference on 21 July 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The written request prepared by Planning Ingenuity dated 13 May 2022, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012, to vary the development standard in clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009, is upheld.

(2) The Appeal is upheld.

(3) Development consent is granted to Development Application No. DA-261/2021 for substantial alterations and additions to the existing building and construction of a part two storey, part five storey boarding house at 5 Grafton Street, Bondi Junction (Lot 11 in Deposited Plan 836679), subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to a boarding house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A

State Environmental Planning Policy (Housing) 2021 Sch 7

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.120

Waverley Local Environmental Plan 2012 cll 4.6, 5.10, 6.2

Category:

Principal judgment

Parties:

Gavancorp Pty Limited (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)

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

File Number(s):

2021/275567

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing boarding house, including a second, third, and fourth floor rear addition at 5 Grafton Street, Bondi Junction. The development, as currently proposed, includes the demolition of the rear portion of the existing buildings, and its replacement with a 5-storey built form at the rear, whilst retaining the built form at the front of the site. The alterations and additions allow for the provision of 21 boarding rooms, a manager’s room, common room, laundry, bicycle parking, and landscaping. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 21 July 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 19 July 2022. The agreement was reached following the lodgement of the amended development application on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended development application was the subject of orders made by the Court on 24 May 2022 and was lodged on the NSW Planning Portal on the same date and is described in [1] above as the development currently proposed.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Requirements and Reasons for Agreement (agreed statement) that sets out the nature of the appeal and the preconditions to the grant of development consent. I have considered the contents of the agreed statement, together with the documents referred to therein and the Class 1 Application and its attachments.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the purpose of a boarding house, which is a use that is permissible in the B4 Mixed Use zone pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• The proposed development complies with the applicable development standards for height and floor space ratio that arise pursuant to the WLEP.

• The site is within the Grafton Street Conservation Area and adjacent to the Grafton Street Landscape Conservation Area, which are heritage conservation areas pursuant to the WLEP. It is also within the vicinity of two heritage items. I am satisfied, based on the Heritage Impact Statement dated June 2021, the Supplementary Heritage Impact Statement dated 12 May 2022 and the Schedule of Conservation Works, that the proposed development will not have an adverse effect on the heritage significance of the heritage conservation area or of the heritage items, in accordance with the consideration required by cl 5.10(4) of the WLEP.

• The development application includes earthworks. Based on the Geotechnical Investigation Report prepared by JK Geotechnics dated 11 May 2022, the Preliminary Waste Classification Assessment prepared by JK Environments Pty Ltd dated 11 May 2022, and the Review of Environmental Sensitive Areas prepared by JK Environments Pty Ltd, dated 11 May 2022, I have considered the matters set out in cl 6.2(3) of the WLEP.

• The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7 includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application. Clause 30A of the SEPP ARH requires consideration of “whether the design of the development is compatible with the character of the local area”. I am satisfied that the retention of the front portion of the existing building with no change to its built form presentation to the street, together with the Schedule of Conservation Works and the mansard roof of the new portion of the building, ensures that the design of the proposed development is compatible with the character of the local area.

• At cl 30 of the SEPP ARH, consent cannot be granted unless certain requirements are met. Based on the agreed statement and on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development, except for the requirement pursuant to cl 30(1)(h) to provide at least one parking space for a motorcycle for every 5 boarding rooms. The proposed development does not include any motorbike parking spaces. Clause 4.6 of the WLEP operates to allow consent to be granted notwithstanding the contravention of a development standard if certain requirements are satisfied and applies to a development standard arising under the SEPP ARH. Pursuant to the provisions of cl 4.6 of the WLEP, I am satisfied that consent should be granted notwithstanding the contravention of the standard in cl 30(1)(h). I am satisfied that the written request dated 13 May 2022 and lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach of the standard by demonstrating that the retention of the front portion of the existing building and front sandstone wall on heritage grounds means that motorcycling parking cannot be provided, and the levels of the site are such that the front yard area is accessed by stairs, rendering motorcycle manoeuvring on the site impossible without works to the front of the site. As such, the absence of motorcycle parking allows for a more responsive design that promotes the retention of the existing front portion of the building and sandstone wall on heritage grounds. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the site is in a highly accessible location and offers bicycle spaces. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the SEPP ARH and the objectives of the zone.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential uses, it is unlikely to be contaminated.

• Clause 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the proposed development, on the basis that the site is located opposite Syd Enfield Drive, which is a 6-lane carriageway with traffic volumes in excess of 20,000 vehicles. Consistent with cl 2.120 and based on the updated acoustic report dated 21 December 2021, I have taken into consideration the matters in cl 2.120(2), and I am satisfied that appropriate measures will be taken to ensure that the LAeq levels in cl 2.120(3) are not exceeded.

6. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for density and scale, building height, landscaped area, solar access, private open space, and accommodation size. Accordingly, consent cannot be refused on any of those grounds.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

9. The Court orders that:

1. The written request prepared by Planning Ingenuity dated 13 May 2022, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012, to vary the development standard in clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009, is upheld.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. DA-261/2021 for substantial alterations and additions to the existing building and construction of a part two storey, part five storey boarding house at 5 Grafton Street, Bondi Junction (Lot 11 in Deposited Plan 836679), subject to the conditions of consent in Annexure A.

J Gray

Commissioner of the Court

Annexure A (407950, pdf)

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Decision last updated: 21 July 2022