Henson v Waverley Council

[2020] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:

Henson v Waverley Council [2020] NSWLEC 1383

Hearing dates:

Conciliation conference on 13 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the court are:
(1) Leave is granted to the applicants to amend the development application to rely on the plans and documents listed under condition A.1 of Annexure A.
(2) The appeal is upheld.
(3) Development Application No. 69/2020 for the demolition of the existing dwelling and construction of a three-storey dwelling, at 24 Belgrave Street, Bronte, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Waverley Local Environmental Plan 2012

Texts Cited:

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Brett Henson (First Applicant)
Camille Henson (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2020/130727

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 69/2020 for the demolition of the existing detached dwelling and construction of a three storey dwelling (the proposal) at 24 Belgrave Street, Bronte (the site) by Waverley Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 August 2020. I presided over the conciliation conference.

3. Two resident objectors gave evidence at the commencement of the conciliation conference. Their concerns can be summarised as follows:

• The proposal is too bulky, and the height of the proposal is disproportionate to the size of the site;

• The proposal does not comply with the wall height control of 7.5m in the Waverley Development Control Plan 2012;

• The proposal is contrary to the established character of the locality;

• The neighbouring dwellings are proposed to be listed as heritage items; and

• The garage fronting the rear laneway will have an adverse impact on the rear laneway.

4. The applicant provided amended architectural plans for the purpose of the conciliation conference (the proposal). The planning experts, Anthony Betros for the applicant and Bridget McNamama for the Council, agreed that the amendments made to the proposal in the amended architectural plans addressed and resolved the merit issues raised by the objectors. Consequently, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. 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 the function under s 4.16 of the EPA Act to grant consent to the development application.

The site and its context

6. The site is on the northern side of Belgrave Street, with rear lane access from Dickson Lane. The site has an area of 229sqm and a frontage to Belgrave Street of 6.95m. The site falls to the southern, front boundary.

7. 22 Belgrave Street to the west is a single storey detached dwelling with a pitched roof. 26 Belgrave Street to the east is a single storey detached dwelling with a pitched roof.

8. The locality is characterised by low density residential development comprising a mixture of single and two storey dwellings, with three storey residential flat buildings further to the west on Belgrave Street.

Planning framework

9. The site is zoned R2 Low Density Residential pursuant to Waverley Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible. The objectives of the R2 zone, to which regard must be had, 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.

10. The proposal complies with the height of buildings development standard for the site of 8.5m (cl 4.3 and Height of Buildings Map HOB_004 of LEP 2012) (Dwg No. A3201). The proposal has a maximum wall height above existing ground level of 7.5m.

11. The proposal complies with the floor space ratio (FSR) development standard for the site of 0.85:1 (cll 4.4 and 4.4A(b) and FSR Map FSR_004 of LEP 2012) as the proposal has a FSR of 0.79:1 (Dwg No. A2401).

Orders

12. The orders of the Court are:

1. Leave is granted to the applicants to amend the development application to rely on the plans and documents listed under condition A.1 of Annexure A.

2. The appeal is upheld.

3. Development Application No. 69/2020 for the demolition of the existing dwelling and construction of a three-storey dwelling, at 24 Belgrave Street, Bronte, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (246732, pdf)

Annexure B - Plans (3426883, pdf)

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