Jaques v Waverley Council

[2018] NSWLEC 1641

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jaques v Waverley Council [2018] NSWLEC 1641
Hearing dates:	Conciliation conference on 10, 11 December 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to dwelling house - conciliation conference - agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Katherine Inga Jaques (Applicant) Waverley Council (Respondent)
Representation:	Counsel: R White (Applicant) Solicitors: Hartley Solicitors (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/167844
Publication restriction:	No

Judgment

1. COMMISSIONER: Ms Jaques seeks development consent for alterations and additions to the existing dwelling at 425 Bronte Road, Bronte, including the construction of two additional levels to the dwelling and alterations and additions to the three storey out building at the rear. A development application was lodged with Waverley Council (“the Council”) on 13 February 2018. 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 to 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 [7] 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 arranged 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 commenced on 10 December 2018. 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I was 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 Court Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (“WLEP 2012”).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the WLEP 2012. The proposed maximum height of 9.55m represents a contravention of 1.05m above the numerical standard. The contravention is confined to the third storey main bedroom which is substantially recessed to render it indiscernible from the street frontage. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows for increased internal amenity whilst also allowing the upper level to be sited in a location that does not cause adverse amenity impacts to adjoining dwellings. 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, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request and the expert opinion of the planners, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

5. 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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.

7. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 in Annexure ‘A’.

2. The Applicant’s written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (“WLEP”) seeking to justify the breach of the height development standard set out in clause 4.3 of WLEP has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of WLEP. Consequently, the applicant’s written request is well founded and is upheld.

3. The appeal is upheld.

4. Development application DA-34/2018 for alterations and additions to the existing dwelling at 425 Bronte Road, Bronte and construction of two additional levels with alterations and additions to the three storey out building at the rear is approved subject to the conditions in Annexure ‘A’ to this agreement.

……………………….

Commissioner Gray

Annexure A (C)

Plans

Decision last updated: 12 December 2018