Harris v Waverley Council

[2024] NSWLEC 1306

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harris v Waverley Council [2024] NSWLEC 1306

Hearing dates:

Conciliation conference on 30 and 31 May 2024

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by Brett Daintry of DA planning dated 4 June 2024, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (“WLEP”), seeking to vary the development standard for floor space ratio as set out at cl 4.4A of the WLEP, is upheld.

(2) The appeal is upheld.

(3) Development Application DA‑178/2023 for the demolition and construction of a 3-storey dwelling with integrated basement parking, relocation of driveway, associated landscaping and tree removal, at Lot 5 DP 15588 known as 30 Dellview Street, Tamarama is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA, 39

Environmental Planning and Assessment Regulation 2021, s 27, 37, 38

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.11, 4.6

Waverley Local Environmental Plan 2012, cll 4.4, 4.4A 4.6, 6.1, 6.2

Category:

Principal judgment

Parties:

Andrew Harris (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Berveling (Respondent)

Solicitors:
Conomos Legal
Wilshire Webb Staunton Beattie

File Number(s):

2023/344008

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing dwelling and the construction of a three-storey dwelling house with a basement at 30 Dellview Street, Tamarama. The development application was lodged with Waverley Council (the Council) on 12 July 2023. 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 [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 30 and 31 May 2024. 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.

4. The agreement was subsequently filed on 31 May 2024, although some agreed changes were made following its filing, which simply correct an error in a condition and update the date of the written request concerning the exceedance of the floor space ratio (FSR) development standard.

5. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include an increase to the southern side setbacks on the ground and first floor, an increase in the rear setback, the deletion of the rear balconies on the first floor, and the introduction of a chamfered corner on the north-east of the first and second floor in order to allow for view sharing by retaining a view corridor from level 1 of the northern neighbouring townhouses. The amendments also reduce the size and depth of the basement, including the introduction of a cut out in the basement to allow for deep soil planting in the courtyard above.

6. 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 Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

7. 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 development works are for the purposes of a dwelling house, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the FSR development standard. The development standard establishes a maximum FSR of 0.597:1, pursuant to cll 4.4 and 4.4A of the WLEP. The proposed development has a FSR of 0.65733:1, which results in gross floor area 6.7% greater than that permitted by the FSR development standard, which equates to an additional of 18.46m² of floor area. The amended development application is supported by a written request dated 4 June 2024, lodged pursuant to cl 4.6 of the WLEP (prior to its amendment by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023). I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR development standard by demonstrating that the breach allows for the proposed development to preserve consistency in the streetscape between it and the immediately adjoining development. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request and the Statement of Environmental Effects dated 27 July 2023, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The site is classed as containing Class 5 Acid Sulfate Soils and is within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum. However, based on the Geotechnical Assessment report dated 21 December 2022, the proposed works are not likely to lower the water table below 1m Australian Height Datum and therefore nothing further is required pursuant to cl 6.1 of the WLEP.

• The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical Assessment report dated 21 December 2022 and the agreed conditions of consent, I have considered the matters set out in cl 6.2(3) of the WLEP.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 3 June 2024.

• The site is within the coastal use area, pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Based on the location of the site, its elevation and its distance from the foreshore, I have considered the matters in s 2.11(1)(a), and, consistent with s 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in s 2.11(1)(a) of the SEPP RH.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified between 8 and 24 August 2023, and 13 submissions were received. In addition, five resident objectors made submissions at the commencement of the conciliation conference. I have considered the issues raised in those submissions, some of which have been addressed through amendments to the development application.

8. 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)).

9. 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.

10. The Court notes that:

1. The Respondent, Waverley Council, as the relevant consent authority, has agreed under s. 38(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending development application No. DA‑178/2023 for demolition and construction of a new 3-story dwelling with integrated basement parking, relocation of driveway, associated landscaping and tree removal, in accordance with the following documents (the amended development application):

1. Architectural plans:

Dwng No.	Description	Revision	Date
000	Drawing list	K	31 May 2024
001	BASIX Certificate
002	BASIX Certificate
005	Site/site analysis plan	K	31 May 2024
006	Streetscape analysis plan	K	31 May 2024
100	Basement plan	K	31 May 2024
101	Ground floor plan	K	31 May 2024
102	First floor plan	K	31 May 2024
103	Second floor plan	K	31 May 2024
104	Roof plan	K	31 May 2024
200	West elevation (Dellview Street)	K	31 May 2024
201	North elevation	K	31 May 2024
202	East elevation	K	31 May 2024
203	South elevation	K	31 May 2024
206	Operable Screen Details	J	21 May 2024
300	Section 1	K	31 May 2024
401	Proposed Area Plans	K	31 May 2024
600	External schedule of Materials and finishes	K	31 May 2024

2. Clause 4.6 Request prepared by Brett Daintry of DA planning dated 4 June 2024.

3. BASIX Certificate relating to the Revision K plans.

2. The amended development application was filed with the Court on 4 June 2024.

11. The Court orders that:

1. The Applicant’s written request prepared by Brett Daintry of DA planning dated 4 June 2024, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, seeking to vary the development standard for floor space ratio as set out at cl 4.4A of the WLEP, is upheld.

2. The appeal is upheld.

3. Development Application DA‑178/2023 for the demolition and construction of a 3-storey dwelling with integrated basement parking, relocation of driveway, associated landscaping and tree removal, at Lot 5 DP 15588 known as 30 Dellview Street, Tamarama is determined by the grant of consent subject to the conditions contained in Annexure A.

J Gray

Commissioner of the Court

344008.23 Annexure A

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Amendments

13 September 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, a typographical error in the orders is corrected.

Decision last updated: 13 September 2024