Jasbe Rose Bay Developments Pty Limited v Waverley Council

[2020] NSWLEC 1447

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jasbe Rose Bay Developments Pty Limited v Waverley Council [2020] NSWLEC 1447

Hearing dates:

Conciliation conference on 2 September 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure “A”.

(2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) The clause 4.6 request in relation to cl 4.4 of Waverley Local Environmental Plan 2012 prepared by GSA Planning dated 2 September 2020 is well founded and is upheld.

(4) The appeal is upheld.

(5) Development Application DA-96/2019 for demolition of existing shop, dwelling house and petrol station on the site and construction of a new residential flat building containing 23 units and basement carpark at 599-603 Old South Head Road, Rose Bay is approved subject to the conditions at annexure “A” to this agreement.

Catchwords:

APPEAL – development application – residential flat building – breach of floor space ratio development standard – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Waverley Local Environmental Plan 2012

Texts Cited:

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Jasbe Rose Bay Developments Pty Limited (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Staunton (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/283768

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application to demolish the existing service station, retail shop and dwelling house and to construct a part three, part four-storey residential flat building containing 23 units over basement level parking at five lots known as 599-603 Old South Head Road, Rose Bay. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The appeal is lodged 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.

3. A hearing of the appeal commenced on 1 September 2020. Following an adjournment of the hearing, the Court arranged a conciliation conference between the parties with respect to the appeal, pursuant to s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was then held on 2 September 2020. I presided over the conciliation conference.

4. 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 a deferred commencement consent pursuant to s 4.16(1) of the EPA Act. The amendments made to the development application through the grant of leave include the removal of units 24 and 25 and the removal of some bulk in the design, which together allows the retention of a view corridor from the windows of the dwelling at 1 Northcote Street. The amendments also increase the setback of the basement at the north-western corner so as to allow for increased deep soil planting. As a result, the amended development application seeks the construction of a residential flat building containing 23 units, contained within two separate buildings, above a common basement comprising both a mezzanine level and a basement level, containing a total of 20 car spaces. The amended development application also includes an offer to enter a voluntary planning agreement for a monetary contribution, which will be used for the provision of affordable housing “or any other public purpose agreed by the Developer and Waverley Council”.

5. A signed agreement was filed by the parties on 2 September 2020, and that agreement was varied by an agreed change to a proposed condition of consent (condition 8) communicated to the Court by email on 21 September 2020.

6. As the presiding Commissioner, I am satisfied that the decision to grant a deferred commencement consent to the amended application 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:

1. The development is for the purpose of a residential flat building, 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 2012”).

2. I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (“FSR”) development standard. The development standard establishes a maximum FSR of 0.9:1, pursuant to cl 4.4 of the WLEP 2012. The proposed development has a FSR of 0.94:1, which represents a breach of the maximum FSR by 4.9%, with additional floor space of 118.3m². I am satisfied that:

1. 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 FSR development standard by demonstrating that the consolidation of six allotments to form the subject site creates a large area over which built form can be accommodated, with less land area required for internal setbacks, allowing the site to comfortably accommodate the additional floor space without any unreasonable adverse impacts. The request demonstrates that the fact that the site does not follow the typical subdivision pattern and doesn’t need to allow for setbacks between individual lots, means that the areas that would otherwise form side setbacks can be used for built form without amenity impacts, which also allows view corridors for adjacent properties to be retained. I accept that these grounds are sufficient to justify the additional FSR.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal achieves the objectives of the standard notwithstanding the non-compliance, and as there is no unacceptable impact caused by the breach of the standard.

3. Based on the contents of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

3. The development does not breach any other development standards in the WLEP 2012 or any other applicable environmental planning instrument.

4. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. I am satisfied that the site can be made suitable for the development on the basis of the Letter of Interim Advice concerning Remediation Feasibility prepared by Phreatic Consulting dated 20 August 2020 and the conditions of consent, which require that a Site Audit Statement be obtained and submitted to the Council prior to the issue of a construction certificate, and that the conditions on the Site Audit Statement must form part of the conditions of consent.

5. The amended development application is supported by an updated BASIX Certificate dated 16 September 2020 in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

6. In exercising the functions of the consent authority, the Court has the power to impose the conditions of consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 7.7(3), this power extends to the imposition of the condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer.

7. I also note that, whilst a number of the residents raised concerns with respect to the adequacy of the basement car parking and the potential for an adverse impact on the availability of on-street parking, the parking that is provided by the proposed development meets the standards in the Waverley Development Control Plan 2012 – Amendment No. 6, and s 4.15(3A)(a) of the EPA Act prevents more onerous standards being imposed where the standards are met.

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 orders that:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure “A”.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The clause 4.6 request in relation to cl 4.4 of Waverley Local Environmental Plan 2012 prepared by GSA Planning dated 2 September 2020 is well founded and is upheld.

4. The appeal is upheld.

5. Development Application DA-96/2019 for demolition of existing shop, dwelling house and petrol station on the site and construction of a new residential flat building containing 23 units and basement carpark at 599-603 Old South Head Road, Rose Bay is approved subject to the conditions at annexure “A” to this agreement.

……………………….

J Gray

Commissioner of the Court

Annexure A (602730, pdf)

Architectural Plans (13600633, pdf)

**********

Decision last updated: 24 September 2020