MHN Design Union Pty Ltd v Waverley Council

[2020] NSWLEC 1545

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHN Design Union Pty Ltd v Waverley Council [2020] NSWLEC 1545

Hearing dates:

Conciliation conference on 11 September 2020, 28 September 2020 and 15 October 2020

Date of orders:

9 November 2020

Decision date:

09 November 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure ‘A’.

(2) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the sum of $13,000 within 28 days of these orders.

(3) The appeal upheld.

(4) Development consent be granted to DA-336/2019 for the demolition of all existing dwellings and the construction of a four storey residential flat building over basement parking and associated landscape works, comprising 10 apartments, 15 private parking spaces, 5 motorcycle spaces and 11 bicycle spaces at 45-47 Ramsgate Avenue, Bondi Beach NSW, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development – agreement between parties – conciliation conference – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Statement Environmental Planning Policy (Affordable Rental Housing) 2009

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

Waverley Local Environmental Plan 2012

Category:

Principal judgment

Parties:

MHN Design Union Pty Ltd (Applicant)
Waverley council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

File Number(s):

2020/80126

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-336/2019 by the Waverley Council (the Respondent) seeking consent for demolition of an existing detached dwelling house in order to construct a four storey residential flat building over basement level parking at 45-47 Ramsgate Avenue, Bondi Beach (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 September 2020. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached in-principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

4. I adjourned the conciliation conference to permit the amendment of the plans in accordance with the terms of the agreement, and in order for the conditions to be settled and finally agreed.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 October 2020.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met for the following reasons:

1. The site is located within the R3 Medium Density Residential zone identified in the Waverley Local Environmental Plan 2012 (WLEP), in which multi-dwelling housing is permitted with consent. Multi-dwelling housing is defined in the dictionary of the WLEP as a type of residential accommodation encompassing residential flat buildings.

2. The objectives of the R3 zone are as follows:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium 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.

3. The proposed development is within the maximum height of buildings development standard at cl 4.3 of the WLEP.

4. The proposed development also complies with the maximum floor space ratio (FSR) when the benefit of the additional bonus of 0.5:1 from the Statement Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) is considered.

5. Likewise, in considering cl 16A of the Affordable Housing SEPP, I am satisfied that the proposed development is compatible with the character of the local area. In particular, I note the streetscape analysis of Ramsgate Avenue and the description of the context and neighbourhood character that is adjunct to the design statement prepared by the Applicant.

6. I also note that the conditions of consent allocate a portion of the proposed development for the purpose of affordable housing for a period of 10 years that is managed by a registered community housing provider, the requirements of which are registered on the title in accordance with cl 17 of the Affordable Housing SEPP.

7. The site is located within the Bondi Beach Heritage Conservation Area (Bondi Beach HCA) which is listed for its local heritage significance. In accordance with cl 5.10 of the WLEP, I am satisfied, on the basis of the Heritage Impact Statement prepared by Weir Phillips dated September 2019, that the proposed development is compatible with the heritage character of the Bondi Beach HCA.

8. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied that the statement provided by Brian Meyerson (Reg No.4907), dated 20 August 2020 is in a complying form.

9. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), I am satisfied on the basis of the statements contained at p20 of the Statement of Environmental Effects prepared by Planning Ingenuity dated 10 October 2019 that the site is not contaminated due to the history of residential use.

10. Finally I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure ‘A’.

2. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the sum of $13,000 within 28 days of these orders.

3. The appeal upheld.

4. Development consent be granted to DA-336/2019 for the demolition of all existing dwellings and the construction of a four storey residential flat building over basement parking and associated landscape works, comprising 10 apartments, 15 private parking spaces, 5 motorcycle spaces and 11 bicycle spaces at 45-47 Ramsgate Avenue, Bondi Beach NSW, subject to the conditions of consent in Annexure ‘A’.

……………………….

T Horton

Commissioner of the Court

Annexure A (402384, pdf)

Plans (36790971, pdf)

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Decision last updated: 09 November 2020