Murray v Waverley Council

[2022] NSWLEC 1421

Land and Environment Court

New South Wales

Medium Neutral Citation:

Murray v Waverley Council [2022] NSWLEC 1421

Hearing dates:

Conciliation conference on 30 June 2022

Date of orders:

12 August 2022

Decision date:

12 August 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application DA/91/2021/1 for alterations and additions to an existing dwelling house including a new first floor addition and rear deck at 37 Read Street, Bronte subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021
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 2.3, 2.7, 4.3, 4.4, 6.1, 6.2

Category:

Principal judgment

Parties:

Malcolm John Murray (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/74085

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA No-91/2021/1 (the DA) by Waverley Council (the Council) on 19 January 2022. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 262.1 m² parcel of land which is legally described as Lot 2 in DP 166785 and known as 37 Read Street Bronte (the Site). The Site is located on the southern side of Read Street has a frontage of 7.535m and a depth of 35.255m on the eastern boundary and 35.365m on the western boundary. The Site is currently occupied by a detached dwelling house comprising a ground and lower ground floor with vehicular access to a double garage. The DA as submitted to Council sought consent for alterations and additions to the existing dwelling house, including a new first floor addition and rear deck.

3. The Development Application was notified by the Respondent for a period of 14 days from 18 March to 5 April 2021. A total of six (6) submissions were received. Following refusal of the DA on 20 July 2021, the applicant lodged a review of the determination of the DA. The review application was notified for a period of 14 days from 30 September 2021 and the Respondent received four (4) submissions. All submissions have been considered by the Respondent and by the Court.

4. 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 30 June 2022, and at which I presided. A submission from one resident was made to the Court during the conciliation.

5. Prior to the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 June 2022.

7. 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, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. The main changes between the plans as originally submitted to Council and the Amended Development Application, the subject of the s 34 agreement, are:

1. The first floor level of the dwelling is moved approximately 3.8m to the north with a majority of the existing roof retained.

2. A reduction in the floor area on the first floor and a modified and reduced deck area.

3. Retention of the existing roof on the eastern and western elevations.

4. Changes to the roofline to the first floor level on the southern elevation.

5. Reduction in the front setback on the northern elevation.

9. 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 power under s 4.16 of the EPA Act.

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

11. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [12] – [15] below.

Satisfaction of jurisdiction

12. The relevant jurisdictional matters in relation to the Waverley Local Environmental Plan 2012 (WLEP) are:

1. The proposed development is characterised as a dwelling house which is permitted in the R2 Low Density Residential zone under WLEP with the development consent of Council.

2. Clause 2.3(2) requires that regard be had to the R2 zone objectives. I am satisfied that Amended Development Application is by its form and nature consistent with the objectives of the zone.

3. Clause 2.7 of WLEP (Demolition) provides that demolition is permissible with consent. To the extent the demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.

4. Clause 4.3(2) (Building Height) prescribes a maximum building height development standard of 8.5m metres for any building on the land. The design of the Proposed Development as amended complies with the height control.

5. Clause 4.4(2) (Floor Space Ratio) of WLEP prescribes a maximum floor space ratio (FSR) development standard of 0.5:1. Clause 4.4A(b) provides an exception to the control of 0.5:1 for a dwelling house in Zone R2 low density residential. The site area is 262.1m². The formula in clause 4.4A(b) applies a maximum FSR of 0.82:1. The proposed development complies with the FSR control in WLEP.

6. Clause 6.1 (Acid Sulfate Soils) applies to the Land. The Land is mapped as class 5 on the Acid Sulfate Soils Map. I am satisfied that as the proposal does not comprise of works that will affect existing soils or pose any environmental risks that no further assessment is required.

7. Clause 6.2 (Earthworks) does not apply as no earthworks are proposed.

8. The Applicant is the owner of the land and has provided owners consent to lodgement of the DA.

13. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. I am satisfied from the evidence that the Site is currently used for residential purposes and is not contaminated and does not adjoin land known to be contaminated and no excavation or earthworks are proposed as part of the DA.

14. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), an amended BASIX certificate No A405914_04 dated 27 June 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the SEPP BASIX.

15. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the Site. I am satisfied that as no vegetation is being cleared the SEPP B&C is not relevant.

Conclusion

16. 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.

17. 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.

18. The Court notes:

1. Waverley Council as the relevant consent authority for the purposes of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending Development Application no. DA/91/2021/1(‘development application”) to rely on the following plans and documents:

• Amended Architecture Plans JC01(Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC03 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC05 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC06 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC07 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC08 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Amended Architecture Plans JC09 (Rev 3) prepared by Phillip Lance dated 6 June 2022.

• Basix Certificate No. A405914_04 dated 27 June 2022.

• The Amended Development Application was uploaded to the NSW Planning Portal on 27 June 2022.

• The Applicant has subsequently filed the Amended Development Application with the Court on 30 June 2022.

Orders

19. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA/91/2021/1 for alterations and additions to an existing dwelling house including a new first floor addition and rear deck at 37 Read Street, Bronte subject to the conditions of consent at Annexure A. ……………………….

L Sheridan

Acting Commissioner of the Court

Annexure A (284438, pdf)

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Decision last updated: 12 August 2022