MH Development One Pty Ltd v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

MH Development One Pty Ltd v Waverley Council [2023] NSWLEC 1072

Hearing dates:

Conciliation Conference on 13-14 February 2023

Date of orders:

22 February 2023

Decision date:

22 February 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA-82/2016 is modified in the terms in Annexure A.

(3) Development Consent No. DA-82/2016 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION: modification application for residential flat building in R2 Medium density residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 7.4, 8.9

Environmental Planning and Assessment Regulation 2021, s102, 113, Sch 7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.9

Cases Cited:

Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1159

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

Waverley Planning Agreement Policy 2014 (Amendment No. 4)

Category:

Principal judgment

Parties:

MH Development One Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

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

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

File Number(s):

2022/203491

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 Appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council of modification application No DA 82/2016/E (modification application) seeking consent to modify development consent DA-82/2016 (original consent) for the demolition of existing buildings, amalgamation of two Torrens title lots, and construction of a four-storey residential flat building comprising 11 units and basement car parking and Strata subdivision at 629-631 Old South Head Road, Rose Bay (the site).

2. The modification application, made pursuant to s 4.56 of the EPA Act, seeks consent for the following:

1. Removal of car stackers and reducing the total car parking spaces from 19 to 14 (1 accessible) on Basement Level together with expansion of the basement northwards and eastwards and reconfiguration of car park layout;

2. Provision of a new north-facing one bedroom unit (known as Unit 1.02) in what was previously a void area to accommodate car stackers on Level 1;

3. Relocation of bicycle and storage room to the southern side of the building. The number of bicycle spaces will be reduced from 12 to 9 on Level 1;

4. Internal reconfiguration and minor external changes on Level 2 to convert the two units at the front into a three-bedroom unit (known as Unit 2.01) and minor reconfiguration of Unit 2.01 (two bedroom unit);

5. Conversion of two units into one three bedroom unit (known as Unit 3.01) on Level 3;

6. Reconfiguration of Unit 4.02 on Level 4;

7. Reduction of thickness of external walls…