Machkevitch and Corona Projects v Waverley Council

[2025] NSWLEC 1182

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Machkevitch and Corona Projects v Waverley Council [2025] NSWLEC 1182

Hearing dates:

Conciliation conference on 28 February 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by ABC Planning dated February 2025, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld.

(2) The appeal is upheld.

(3) Development Application DA-175/2024 for the conversion of a residential flat building to a dual occupancy and various alterations and additions at 247 Military Road, Dover Heights on land identified as Strata Plan 30563 is determined by the grant of development consent subject to conditions of consent contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: Dual occupancy development in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2, 6.15

Texts Cited:

Waverley Community Engagement Strategy 2023

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Alex Machkevitch (First Applicant)
Corona Projects Pty Ltd (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
J Ede (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
Wilshire Webb Beattie Staunton (Respondent)

File Number(s):

2024/235165

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council (the Council) of development application DA-175/2024 seeking consent for the conversion of a residential flat building into a dual occupancy development, with alterations and additions at 247 Military Road, Dover Heights.

2. The development application was lodged with the Council by the Applicant on 6 May 2024, and was notified between 24 May – 7 June 2024 in accordance with the Waverley Community Engagement Strategy 2023.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 February 2025. I presided at the conciliation conference.

4. Prior to the conciliation conference, the parties reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application, subject to an adjournment to prepare amended plans consistent with the in-principle agreement.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 February 2025.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. The site is located in the R2 Low Density Residential zone, according to the Waverley Local Environmental Plan 2012 (WLEP), in which dual occupancy development is permitted with consent, where consistent with the following objectives of the R2 zone:

•  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.

•  To maximise public transport patronage and encourage walking and cycling.

•  To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time.

•  To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability.

•  To promote development that incorporates planning and design measures that reduce the urban heat island effect.

•  To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

11. The proposal exceeds the height standard of 8.5m that applies to the site at cl 4.3(2) of the WLEP. The proposed development exceeds the height standard by 2.82m, with a resultant height of 11.32m. A written request authored by ABC Planning in accordance with cl 4.6 of the WLEP seeks to justify the contravention by asserting that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the height standard are achieved, notwithstanding the non-compliance, and because there are sufficient environmental planning grounds to justify the contravention.

12. The relevant objectives of the height standard at cl 4.3(1) are:

(a)  to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

…

(c)  to maintain satisfactory solar access to existing buildings and public areas,

(d)  to establish building heights that are consistent with the desired future character of the locality.

13. In summary, the written request argues the objectives are achieved because the development will appear as two storeys in the Military Rd streetscape, consistent with the scale of development anticipated by the height controls in the WLEP and the 7m wall height control in the Waverley Development Control Plan 2022. The sunken topography of the site and integration with the existing built form, when considered in its streetscape, results in appropriate view sharing with surrounding neighbours and so preserves environmental amenity of neighbouring properties and public spaces. Next, an assertion that the proposal maintains satisfactory solar access to existing buildings and public areas is supported by sun eye diagrams that depict minor obstruction to north facing openings in the adjoining property to the south. Finally, as the proposal will present as two storeys from the street, it is consistent with the desired future character of the R2 zone. For the reasons set out above, I am satisfied of those matters at cl 4.6(3) of the WLEP.

14. A floor space ratio of 0.5:1 applies to the site by virtue of the relevant map at cl 4.4(2) of the WLEP. However, an exception applies at cl 4.4A(b) of the WLEP to derive a permissible FSR of 0.548:1, with which the proposal is consistent.

15. The site is located in an area identified with Class 5 Acid Sulfate Soils at cl 6.1(2) of the WLEP, however as there is negligible excavation proposed, the watertable will not be affected and so an acid sulfate soils management plan is not required.

16. Likewise, given the negligible excavation proposed, I am of the view that the matters for consideration at cl 6.2(3) of the WLEP are adequately addressed in the documents on which Applicant relies.

17. On the basis of the proposed stormwater plan prepared by DT Civil, and the agreed conditions of consent requiring 50% of the front setback area to be soft landscaping, I am satisfied that water permeable surfaces have been maximised on the land, that no additional impervious surfaces result, and that adverse impacts of stormwater runoff are avoided, in accordance with cl 6.15 of the WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the statement made on p 10 of the Statement of Environmental Effects, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

19. The site is located within the Coastal Use Area, and so the provisions at s 2.11 apply to the development. I have considered those matters at s 2.11(1) of the Hazards SEPP, and I am satisfied that the proposed development is designed, sited and will be managed to minimise the impact of the development on the coastal use area. In particular, I note those aspects of overshadowing and visual impact cited at [13] in forming the state of satisfaction required by s 2.11(1)(b), and in taking into account the bulk, size and scale of the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

20. The application is accompanied by a BASIX certificate (Cert Nos A1785853 and A1785855 prepared by Greenworld Architectural Drafting dated 4 March 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

21. The Applicant has also provided an Embodied Energy Report prepared by Positive Eco dated 16 March 2025 such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

22. 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 LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

24. The Court notes that:

1. The Respondent, Waverley Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA-175/2024 to rely on the documents listed below:

1. Architectural Plans prepared by Archi Spectrum including the following:

Plan Number and Revision	Plan description	Plan Date	Date received by Council
DA01.00 Rev.C	BASIX Commitments	18 December 2024	18 February 2025
DA01.01 Rev.C	Site Analysis	18 December 2024	18 February 2025
DA02.01 Rev.C	Existing Ground Floor Plan	18 December 2024	18 February 2025
DA02.02 Rev.C	Existing First Floor Plan	18 December 2024	18 February 2025
DA02.03 Rev.C	Existing Second Floor Plan	18 December 2024	18 February 2025
DA03.01 Rev.C	Proposed Ground Floor Plan	18 December 2024	18 February 2025
DA03.02 Rev.C	Proposed First Floor Plan	18 December 2024	18 February 2025
DA03.05 Rev.C	Site & Roof Plan	18 December 2024	18 February 2025
DA04.01 Rev.C	North Elevation	18 December 2024	18 February 2025
DA.04.02 Rev.C	South Elevation	18 December 2024	18 February 2025
DA04.03 Rev.C	East & West Elevations	18 December 2024	18 February 2025
DA05.01 Rev.C	Section A-A	18 December 2024	18 February 2025
DA05.02 Rev.C	Section B-B	18 December 2024	18 February 2025
DA06.01 Rev.C	Area Calculations	18 December 2024	18 February 2025
DA07.01 Rev.C	External Finishes	18 December 2024	18 February 2025

2. Clause 4.6 written variation request in relation to contravention of height of buildings development standard prepared by ABC Planning dated February 2025.

3. Statement of Environmental Effects prepared by Corona Projects dated February 2025

2. The Applicant filed the amended plans and other documents with the Court on 28 February 2025, and on 21 March 2025.

Orders

25. The Court orders that:

1. The Applicant’s written request prepared by ABC Planning dated February 2025, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld.

2. The appeal is upheld.

3. Development Application DA-175/2024 for the conversion of a residential flat building to a dual occupancy and various alterations and additions at 247 Military Road, Dover Heights on land identified as Strata Plan 30563 is determined by the grant of development consent subject to conditions of consent contained in Annexure A.

T Horton

Commissioner of the Court

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Annexure A (506 KB, pdf)

Amendments

01 May 2025 - Annexure A amended to remove error at condition 1c

10 October 2025 - Annexure A amended at Condition 1(C)

Decision last updated: 10 October 2025