McManus and Klinger v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

McManus & Klinger v Waverley Council [2012] NSWLEC 1085

Hearing dates:

28 March 2012

Decision date:

10 April 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. By consent, the appeal is upheld.

2. Development Application No. 342/10 for alterations and additions to an existing flat building is approved, subject to the conditions in Annexure A.

3. The exhibits are returned, with the exception of exhibits 2, 4 and A.

Catchwords:

DEVELOPMENT APPLICATION: Consent orders; alterations and additions to existing flat building; resident objectors.

Legislation Cited:

Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979

Cases Cited:

Shields v Waverley Council [2011] NSWLEC 1115

Category:

Principal judgment

Parties:

Amanda McManus & Steven Klinger (Applicant)

Waverley Council (Respondent)

Representation:

Mr Klinger (Solicitor) (Applicant)

Mr Patterson (Solicitor) (Respondent)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

11010 of 2011

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No 342/2010 (the application) for alterations and additions to an existing flat building at 4 Glen Street, Bondi (the site).

1. Waverley Council (the Council) refused development application D/2010/85 for a two-storey addition to the existing flat building on 23 November 2010. Amendments were then made to the proposal, including deleting one of the additional floors and the amended proposal was submitted to Council for a s 82A Environmental Planning and Assessment Act 1979 (EPA Act) review of council's determination. The appeal to the Court was filed prior to the determination of the s 82A review.

1. The appeal was the subject of a s 34 of the Land and Environment Court Act 1979 (LEC Act) conciliation conference on 31 January 2012. The s 82A amended proposal (the proposal) was further modified during the s 34 conciliation conference. The conciliation conference was terminated pursuant to s 34(4)(a) on 14 March 2012. Following the termination of the s 34 conciliation conference, the parties agreed to enter into consent orders. The principle changes made to the proposal following the conciliation conference were:

• The roof design was modified to reduce the overall height of the building by reducing the pitch of the skillion roofs;
• Privacy screens were added to the southern end of the proposed balcony on the top floor at the rear of the block and a planter box was added along the length of the balcony; and
• A fire egress was added and changes made to the basement car parking layout to allow for a direct path to the fire escape.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent…