Mezuzah Investments Pty Ltd v Waverley Council - [2021] NSWLEC 1619

Land and Environment Court

New South Wales

Medium Neutral Citation: Mezuzah Investments Pty Ltd v Waverley Council [2021] NSWLEC 1619
Hearing dates: Conciliation conference on 13 and 29 July and 23 August 2021, final agreement filed 12 October 2021
Date of orders: 19 October 2021
Decision date: 19 October 2021
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
1) The Applicant’s written request under cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Floor Space Ratio development standard in cl 4.4 of the WLEP is upheld.
2) The Applicant’s written request under cl 4.6 of the WLEP, prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Height of Buildings development standard in cl 4.3 of the WLEP is upheld.
3) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days.
4) The appeal is upheld.
5) Consent is granted to Development Application DA-205/2020 for alterations and additions to the existing residential flat building at 132 Hewlett Street, Bronte, subject to the conditions contained at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential apartment development – alterations and additions – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 50, 55
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy No 55—Remediation of Land 1998, cl 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category: Principal judgment
Parties: Mezuzah Investments Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
V Conomos (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2021/80419
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-205/2020 (DA) by Waverley Council (the Respondent). The DA sought consent for alterations and additions to the existing residential flat building, including an increase in roof height and pitch to accommodate a new floor level, at 132 Hewlett Street, Bronte (the site).
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 13 and 29 July, and 23 August 2021. I presided over the conciliation conference.
Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.
Prior to the conciliation conference, the Applicant prepared a set of plans, on a without prejudice basis, incorporating changes intended to resolve the contentions raised by the Respondent. These amended plans formed the subject of the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to a further, final amended proposal, subject to conditions.
Whilst the final amended proposal remains substantially the same as the original DA, a series of design changes cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to building height, floor space and density, streetscape, built form and scale, view loss and privacy amongst other contentions.
In summary, the agreed amendments have the effect of situating the proposed additions largely within the existing roof form of the residential apartment building. Agreed conditions of consent further protect the privacy of neighbouring properties.
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.
In that regard, I am satisfied the DA was made with the consent (in writing) of the registered proprietors of the site, being the Applicant in these proceedings.
The parties agree, and I am satisfied, the Waverley Local Environmental Plan 2012 (WLEP) is a relevant environmental planning instrument. The site is zoned R2 Low Density Residential. Additionally, I am satisfied that the site benefits from existing use rights and is currently occupied by a three-storey residential flat building, comprising one level of ground floor parking and two residential floors above. Approval of the final amended proposal will maintain the current lawful use as a residential flat building.
At cll 4.3 and 4.4 of the WLEP, development standards are set out for height of buildings and floor space ratio (FSR) respectively. The relevant maximum height of building development standard is 8.5m and the relevant FSR development standard is 0.5:1. The final amended proposal seeks to vary both these development standards.
In each case, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard, and the objectives for development within the zone in which the development is proposed to be carried out.
Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.
On the question of the height of building development standard, the parties agree the final amended proposal exceeds the development standard of 8.5m. In seeking to undertake alterations and additions to the existing residential flat building, the resultant development will maintain the existing maximum height of building of 10.34m, effectively perpetuating an exceedance of the development standard by 33.8%.
The parties and their planning experts are agreed, and I am satisfied, that the Applicant’s cl 4.6 written request adequately justifies this variation because the final amended proposal retains the ridge height of the existing residential flat building, which is not proposed to be altered from 10.34m. The proposed dormer windows to the eastern and western roof planes are located below this existing ridge height, and present a height of 10.26m at their greatest extent.
On the question of the FSR development standard, the parties agree the final amended proposal exceeds the development standard of 0.5:1. The existing building has a gross floor area of 274.3sqm, equating to a FSR of 0.67:1. The final amended proposal seeks to increase the gross floor area of the existing development by a further 39.7sqm, resulting in a maximum FSR of 0.77:1. This creates a total exceedance of the development standard by 55.4%, increasing from the existing exceedance of 35.5%.
The parties and their planning experts are agreed, and I am satisfied, that the Applicant’s cl 4.6 written request adequately justifies the variation because the final amended proposal generally locates additional floor space within the existing roof form and because earlier view loss and overshadowing contentions have been satisfactorily resolved.
I am satisfied the two separate cl 4.6 written requests, prepared by aSquare Planning and dated 30 July 2021, demonstrate that objectives set out in cll 4.3(1) and 4.4(1) of the WLEP have been met despite the numeric non-compliance.
The relevant objectives set out in cl 4.3(1) of the WLEP include establishing compatibility with the height, bulk and scale of the desired future character of the locality, preserving the environmental amenity of neighbouring properties and sharing of views.
The relevant objectives set out in cl 4.4(1) of the WLEP are similar and include establishing compatibility with the bulk and scale of the desired future character of the locality, and preserving the environmental amenity of neighbouring properties.
I am satisfied the final amended proposal has been reduced in scale and situated primarily within the roof form of the existing residential flat building in a manner that mitigates against view loss within the immediate vicinity, and does not create unreasonable additional amenity impacts on adjoining properties as a result of the proposed bulk and scale. For these reasons, I accept the objectives of the development standards are met despite the numeric contravention.
Similarly, and consistent with cl 4.6(4) of the WLEP, I am satisfied the two separate cl 4.6 written requests adequately address the objectives of the R2 Low Density Residential zone. I note the existing residential flat building, would otherwise be a prohibited use in the R2 zone. However, I accept the existing building operates by virtue of existing use rights. The proposed development is consistent with the orderly and economic development of land as it proposes to improve existing housing stock.
I am satisfied the final amended proposal will be in the public interest because it is consistent with the objectives of the height of building and FSR development standards. Although the existing residential flat building is not consistent with the objectives of the R2 zone, the final amended proposal is designed in such a manner as to not detract from the character of the area in which it is located.
I am satisfied the final amended proposal is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (Reg), the Applicant's architect, Mr Martin Bednarczyk (registered architect 8912), has prepared a Design Verification Statement fulfilling the requirements of cl 50(1AB) of the Reg.
I am satisfied State Environmental Planning Policy 55—Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes. The site is currently occupied by a residential flat building. The proposal does not seek to alter the categorisation of land use. As such, I am satisfied cl 7 of SEPP 55 has been appropriately addressed.
The parties agree, and I am satisfied, that three BASIX Certificates, corresponding with each of the three dwellings proposed to be altered, have been submitted in support of the final amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificates.
Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering and responding to submissions from objectors, the final amended proposal is in the public interest.
Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

The Court notes that:

Waverley Council, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA-205/2020 by altering the proposed form of the roof.

Waverley Council, as the relevant consent authority, has effected lodgement of the amended Development Application on the NSW Planning Portal and notified the Applicant and the Court on 28 September 2021.

The Applicant has subsequently filed with the Court a copy of the amended Development Application on 1 October 2021.

The Court orders that:

The Applicant’s written request under cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Floor Space Ratio development standard in cl 4.4 of the WLEP is upheld.

The Applicant’s written request under cl 4.6 of the WLEP, prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Height of Buildings development standard in cl 4.3 of the WLEP is upheld.

The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days.

The appeal is upheld.

Consent is granted to Development Application DA-205/2020 for alterations and additions to the existing residential flat building at 132 Hewlett Street, Bronte, subject to the conditions contained at Annexure A.

………………………..

M Pullinger
Acting Commissioner of the Court

Annexure A (293333, pdf)

**********

Decision last updated: 19 October 2021

Medium Neutral Citation:	Mezuzah Investments Pty Ltd v Waverley Council [2021] NSWLEC 1619
Hearing dates:	Conciliation conference on 13 and 29 July and 23 August 2021, final agreement filed 12 October 2021
Date of orders:	19 October 2021
Decision date:	19 October 2021
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: 1) The Applicant’s written request under cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Floor Space Ratio development standard in cl 4.4 of the WLEP is upheld. 2) The Applicant’s written request under cl 4.6 of the WLEP, prepared by A Square Planning dated 30 July 2021, seeking to justify the contravention of the Height of Buildings development standard in cl 4.3 of the WLEP is upheld. 3) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days. 4) The appeal is upheld. 5) Consent is granted to Development Application DA-205/2020 for alterations and additions to the existing residential flat building at 132 Hewlett Street, Bronte, subject to the conditions contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – alterations and additions – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy No 55—Remediation of Land 1998, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)
Category:	Principal judgment
Parties:	Mezuzah Investments Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2021/80419
Publication restriction:	No