McDonald v Waverley Council

[2024] NSWLEC 1604

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McDonald v Waverley Council [2024] NSWLEC 1604

Hearing dates:

Conciliation conference on 13 September 2024

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA-289/2023 for alterations and additions to a semi-detached dwelling including a first-floor addition at 25 Gipps Street, Bronte is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential development – alterations and additions to semi- detached dwelling – 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 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27

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

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

Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.4A, 6.2

Texts Cited:

Waverley Community Engagement Strategy 2023

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Katherine McDonald (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Doyle (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/193223

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 actual refusal of development application DA/289/2023. The development application seeks consent for alterations and additions to existing semi-detached dwelling including a first-floor addition. The works are proposed on land identified at Lot B in DP 437824, known as 25 Gipps Street, Bronte.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 13 September 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision in the proceedings 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 12 September 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 development application is lodged with the consent of the owners of the land, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified for 14 days between 9 and 27 November 2023 in accordance with the Waverley Community Engagement Strategy 2023. Following receipt of amended plans and additional information, the application was re-notified for 14 days between 4 – 20 March 2024. A total of three submissions were received which raise issues about view loss, overshadowing and visual privacy impacts. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021, the development application is required to be referred to Ausgrid as the development is within 5m of overhead power lines. Ausgrid reviewed the application and recommended advisory conditions of consent.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (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 use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed 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 SEPP RH is satisfied.

5. 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 development application, satisfying these requirements.

6. Waverley Local Environmental Plan 2012 (LEP 2012) is the applicable planning instrument. Pursuant to LEP 2012, the site is zoned R2 Low Density Residential. The proposal is defined as alterations and additions to a semi-detached dwelling, which is permitted with consent in the R2 zone. As required by cl 2.3(2) of LEP 2012, in determining the development application I have considered the objectives of the R2 Low Density Residential zone.

7. Clause 4.3 of LEP 2012 and the Height of Buildings Map fixes a maximum building height of 8.5 metres for the site. The proposal has a height of 8.5m.

8. Clause 4.4 of LEP 2012 and the Floor Space Ratio (FSR) Map fixes a maximum floor space ratio of 0.5:1 for the site. However, cl 4.4A(b) of LEP 2012 provides a relevant exception to this provision for lots with a site area of between 100 and 550 square metres. The area of the site is 218.6 m². Applying this exception, the maximum FSR for a semi-detached dwelling development on the site is 0.865:1. The proposed FSR of 0.819:1 is compliant.

9. Pursuant to LEP 2012, the site is mapped as within the Brown Street Heritage Conservation Area (C5). The development application was supported by a Heritage Impact Assessment prepared by Design Tribe Projects. In determining the development application, I have considered the effect of the proposed development on the heritage significance of the conservation area concerned: cl 5.10(4) of LEP 2012.

10. Clause 6.2(3) 'Earthworks' applies to the site. The development application proposes minimal earthworks in association with construction of footings. Having reviewed the documents which form part of the development application and the matters listed at cl 6.2(3) of LEP 2012, I can be satisfied that none warrant the refusal of the development application.

11. Waverley Development Control Plan 2022 (DCP 2022) applies to the site. The Statement of Environmental Impacts filed with the application details the compliance of the proposed development with DCP 2022. 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” (s 34(3)(b)). I, therefore, make orders in accordance with the agreement of the parties.

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 orders that:

1. The appeal is upheld.

2. Development application DA-289/2023 for alterations and additions to a semi-detached dwelling including a first-floor addition at 25 Gipps Street, Bronte is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Amendments

17 October 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) correction is made to the address of the property in paragraph 6 of the judgment.

Decision last updated: 17 October 2024