Martin v Waverley Council

[2024] NSWLEC 1788

Land and Environment Court

New South Wales

Medium Neutral Citation:

Martin v Waverley Council [2024] NSWLEC 1788

Hearing dates:

Conciliation conference on 21 November 2024

Date of orders:

06 December 2024

Decision date:

06 December 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-211/2024 seeking consent for the partial demolition and substantial alterations and additions to the dwelling house including new first-floor addition, hardstand car space, swimming pool and tree removal at the rear on land identified as Lot B in DP300188 located at 6 Collingwood Street, Bronte in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Alterations and additions to a residential dwelling – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.4A, 5.10, 6.1, 6.2, 6.15, Sch 5

Texts Cited:

Waverley Community Engagement Strategy 2023

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Tyrone Martin (First Applicant)
Tanya Martin (Second Applicant)
Waverly Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2024/00227377

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-211/2024. The development application seeks consent for partial demolition and alterations and additions to the existing dwelling including a swimming pool and tree removal (proposed development) at 6 Collingwood Street, Bronte (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 21 November 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 November 2024.

3. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:

1. The Applicant is a registered proprietor of the site. The development application confirms that both owners consented to the lodgement of the development application as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent between 14 and 30 May 2024 in accordance with the Waverley Community Engagement Strategy 2023. Council received 21 submissions in objection to the development application. Further, a number of members of the public addressed the Court at the commencement of the proceedings on site. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. In particular, the amended plans reduce the bulk of the building form, have altered the location of windows and reduced balcony sizes in response to concerns about heritage impacts and privacy, and have altered the proposed materials for the building works.

3. The proposed development is ‘BASIX development’ as defined by the EPA Regulation and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements. The BASIX Certificate satisfied the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the development application was made. A condition of consent requires compliance with the commitments detailed in the BASIX certificate.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the land the subject of the development application has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of the SEPP RH is satisfied.

5. Section 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the development as it is located within 5 metres of an existing power pole in Collingwood Street. That provision requires the development application to be notified to the electricity supply authority. The parties agree and I accept that the exception at s 2.48(3) applies to the application as no new works under this development are proposed within 5 metres of the electrical infrastructure.

6. Waverley Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to the LEP 2012, the land is zoned R2 Low Density Residential. Development for the purposes of dwelling houses is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are:

•  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.

7. Pursuant to cl 2.7 of the LEP 2012, demolition is permitted with consent.

8. Pursuant to cl 4.3 'Height of Buildings' of the LEP 2012, the site is subject to a maximum building height control of 8.5m. The amended development has a maximum height which is compliant with the development standard.

9. Pursuant to cl 4.4 'Floor Space Ratio', cl 4.4 and the Floor Space Ratio map of the LEP 2012, a maximum floor space ratio (FSR) of 0.5:1 applies to the site. However, an exception applies to the proposed development pursuant to cl 4.4A of the LEP 2012 as the development is for a single dwelling and is proposed on a site which is less than 550 square metres. Applying the formula in cl 4.4A of the LEP 2012, the permissible FSR is 0.7989:1. The architectural plans demonstrate that the amended development has an FSR which is compliant with the development standard.

10. The site is located within the Collingwood Heritage Conservation Area, the Waverley Cemetery Landscape Conservation Area (the HCAs) and within proximity to the curtilage of the Waverley Cemetery which is listed as a local heritage item in Sch 5 of the LEP 2012. The development application is supported by a statement of heritage impact prepared by Zoltan Architects, and the Court is assisted by evidence of heritage experts. The experts agree, and I accept, that the proposed development (as amended) will cause no detrimental impact on any heritage items or the HCAs. As required by cl 5.10(4) of the LEP 2012, I have considered the effect of the development on the heritage significance of the HCAs and the Waverley Cemetery.

11. Clause 6.1 of the LEP 2012 applies to acid sulphate soils. It requires development consent for works described in the table at cl 6.1(2) and requires an acid sulphate management for these works (at cl 6.1(3). The site is identified as being in a Class 5 area on the Acid Sulfate Soil Map in the LEP 2012. However, it does not include works by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

12. As required by cl 6.2 (Earthworks) of the LEP 2012, in determining the development application, I have considered the matters listed at subcl (3). In considering those matters, I am assisted by a Statement of Environmental Effects and the architectural plans which confirm the scope of excavation works is minor. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

13. Clause 6.15(3) ‘Stormwater Management’ applies to the development application. The details in the Stormwater Management Plans which are part of the development application allow me to be satisfied of the matters at cl 6.15(3), namely that the development:

(a) is designed to maximise the use of water permeable surfaces on the land considering the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland, groundwater, wetlands and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

14. Waverley Development Control Plan 2022 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. 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" (subs 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

6. The Court notes that the Respondent has approved, pursuant to s 38 of the EPA Regulation, the Applicant amending the development application DA‑211/2024 to rely on the plans and documents listed below:

1. Architectural Plans

Plan Number and Revision	Plan description	Plan Date	Date received by Council
DA01.01 c	Site Analysis	31/10/2024	6/11/2024
DA01.03 c	BASIX Commitments	31/10/2024	6/11/2024
DA02.01 c	Existing Ground Floor Plan	31/10/2024	6/11/2024
DA02.02 c	Existing Roof Plan	31/10/2024	6/11/2024
DA02.03 c	Demolition Plan	31/10/2024	6/11/2024
DA02.04 c	Proposed Ground Floor	31/10/2024	6/11/2024
DA02.05 c	Proposed First Floor Plan	31/10/2024	6/11/2024
DA02.06 c	Site & Roof Plan	31/10/2024	6/11/2024
DA03.01 c	East & West Elevations	31/10/2024	6/11/2024
DA03.02 c	North & South Elevations	31/10/2024	6/11/2024
DA03.03 c	Boundary Fence Elevations	31/10/2024	6/11/2024
DA04.01 c	Sections	31/10/2024	6/11/2024
DA07.01 c	External Finishes Schedule	31/10/2024	6/11/2024
DA07.02 c	Glazing Schedule	31/10/2024	6/11/2024
DA07.03 c	Frontage Repair Works	31/10/2024	6/11/2024

2. Landscape Plan Project No. 24-5087 L01-L03 prepared by Zenith Landscape Designs, Sheets 1 to 3, dated 16 September2024 and received by Council on 23 September 2024.

3. BASIX Certificate A1741451_02 dated 13 November 2024.

7. The Court orders that:

1. (1) The appeal is upheld.

2. (2) Development Application DA-211/2024 seeking consent for the partial demolition and substantial alterations and additions to the dwelling house including new first-floor addition, hardstand car space, swimming pool and tree removal at the rear on land identified as Lot B in DP300188 located at 6 Collingwood Street, Bronte in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 06 December 2024