Kolokotronis v Waverley Council

[2024] NSWLEC 1069

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kolokotronis v Waverley Council [2024] NSWLEC 1069

Hearing dates:

Conciliation conference on 16 February 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent DA542/2022, for alterations and additions to a single dwelling house is approved subject to the amended conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – grant of consent subject to conditions concerning a tree – 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

Environmental Planning and Assessment Regulation 2021, s 27

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.2

Texts Cited:

Waverly Community Participation Plan 2019

Category:

Principal judgment

Parties:

Theo Kolokotronis (First Applicant)
Olga Kolokotronis (Second Applicant)
Waverly Council (Respondent)

Representation:

Counsel:
L Sims (First and Second Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Brian Phillips Legal (First and Second Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/266729

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the determination of Waverley Council to grant a development consent for alterations and additions to a single dwelling at 30 Ashton Street, Queens Park, subject to conditions. The applicants were dissatisfied with conditions 2 and 3, which required the retention of a Norfolk Pine tree. 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. The final orders in this appeal, outlined in [8] 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 commenced on 16 February 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. The agreement was filed the same day. The agreement is for the grant of development consent subject to conditions which do not require the retention of the Norfolk Pine, but instead require the planting of a replacement tree.

4. The signed agreement is supported by an agreed jurisdictional statement, which sets out the jurisdictional prerequisites to the grant of development consent. I have considered the contents of the agreed statement, together with the documents referred to therein, the Class 1 Application and its attachments.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent 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 R2 Low Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• The proposed development complies with the height of buildings development standard in cl 4.3 of the WLEP, and does not create any additional gross floor area. There is therefore no breach of cl 4.4 concerning the floor space ratio development standard.

• The site is located within a landscape heritage conservation area. I am satisfied, based on the heritage impact statement dated November 2022, that the alterations and additions proposed, which mainly concern the construction of a pool and the replacement of a garage and fence, will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the WLEP.

• The development application includes minor earthworks for the pool. Based on the minor extent of the earthworks and the Council’s assessment report dated 23 December 2022, I have considered the matters set out in cl 6.2(3) of the WLEP.

• Consistent with the requirements of s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the development application is accompanied by the BASIX certificate dated 7 November 2022.

• Consideration has been given as to whether the subject site is contaminated as required by s 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 premises, it is unlikely to be contaminated.

• The development application was notified to adjoining properties, consistent with the Council’s community participation plan, between 20 January and 3 February 2023. No submissions were received.

6. 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)).

7. 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.

8. The Court orders that:

1. The appeal is upheld.

2. Development consent DA542/2022, for alterations and additions to a single dwelling house is approved subject to the conditions of consent at Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 22 February 2024