Lang v Waverley Council

[2021] NSWLEC 1796

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lang v Waverley Council [2021] NSWLEC 1796

Hearing dates:

Conciliation Conference held on 20 December 2021

Date of orders:

24 December 2021

Decision date:

24 December 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The Appeal is upheld

(2) Development application No. DA/138/2021 for the demolition of existing two storey dwelling and swimming pool and construction of new three storey dwelling and swimming pool at 178 Hastings Parade, North Bondi, is approved subject to the conditions of consent in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Waverley Local Environmental Plan 2012, cl 2.3

Texts Cited:

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

David Land (First Applicant)
Dearbhail Land (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicants)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/250958

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the actual refusal of Development Application (DA) 138/2021 by the Waverley Council (Council), which as amended, seeks the demolition of existing structures, construction of a dwelling, basement parking and a pool, with landscaping on Lot 30 DP 1269008, also known as 178 Hastings Parade, North Bondi (the site).

Background

2. The DA was submitted to Council on 16 April 2019, which was internally assessed and refused on 9 August 2021.

3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 138/2021, with conditions.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 138/2021, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been assessed by the Court:

1. Waverley Local Environmental Plan 2012 (WLEP):

1. The planning evidence is that the amended proposal is consistent with the aims and objectives of the WLEP, and the objectives of the R3 Medium Density Residential zone, within which the development is located. The proposed dwelling is permissible with consent in this zone, pursuant to cl 2.3 and has been sized, sited and designed to comply with the relevant development standards. The conditions of consent also address the relevant provisions.

2. State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coast):

1. The site is subject to the provisions of the SEPP Coast, pursuant to cll 13 and 14. The parties agree that the amended proposal is consistent with the relevant provisions of the SEPP Coast, based on its amended design and siting.

3. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

1. The site is not listed on Council’s land contamination register and the amended proposal is otherwise consistent with SEPP 55, specifically cl 7(1). The site has consistently been used for residential purposes, suggesting no source of contamination.

4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:

1. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA.

5. Waverley Development Control Plan 2012 (WDCP):

1. The relevant requirements of the WDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The DA was publicly notified in accordance with the WDCP, and four submissions were received. The parties agree that the submissions of residents have been considered and the relevant issues resolved by amendments to the proposed development.

Grant of consent

9. Based on the amended plans and supporting documents to the amended DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 138/2021 should be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the Court Act to dispose of the proceedings in accordance with the parties' decision.

13. The Court notes that:

1. That the Court, exercising its power under section 39(2) of the Land and Environment Court Act 1979, agrees to the Applicant amending its development application numbered DA/138/2021, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to rely on the amended plans and materials set out in Condition 1 of Annexure “A”.

2. That the Applicant uploaded the amended application on the NSW planning portal on 20 December 2021.

3. That the Applicant filed the amended application with the Court on 20 December 2021.

4. That the Applicant has agreed to pay the Respondent's costs in the agreed sum of $7,500.00.

5. The Respondent is to register the development consent granted in relation to Development Application No DA/138/2021 on the NSW Planning Portal within 14 days of the date of these orders.

6. The Respondent is to publish a notice of the development consent granted in relation to Development Application No DA/138/2021 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days of the date of these orders.

14. The Court orders that:

1. The Appeal is upheld.

2. Development application No. DA/138/2021 for the demolition of existing two storey dwelling and swimming pool and construction of new three storey dwelling and swimming pool at 178 Hastings Parade, North Bondi, is approved subject to the conditions of consent in Annexure “A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (331655, pdf)

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Decision last updated: 24 December 2021