Nadel v Waverley Council

[2023] NSWLEC 1276

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nadel v Waverley Council [2023] NSWLEC 1276

Hearing dates:

Conciliation conference on 18 April 2023

Date of orders:

05 June 2023

Decision date:

05 June 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

(2) The applicant is to pay the respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the sum of $7,500 within 28 days.

(3) The clause 4.6 written variation request dated May 2023 prepared by GSA Planning is upheld.

(4) The appeal is upheld.

(5) Development consent is granted to development application no. DA-180/2022 for alterations and additions to Unit 4 of the existing residential flat building at 81-83 O’Brien Street, Bondi Beach, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.18

Environmental Planning and Assessment Regulation 2021, ss 29, 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 s 4.6

State Environmental Planning Policy No 55—Remediation of Land (repealed)

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 28, 30

Waverley Local Environmental Plan 2012, cll 4.1, 4.3, 4.4, 4.6, 6.14, 6.15

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Apartment Design Guide

Waverley Community Participation Plan 2019

Category:

Principal judgment

Parties:

James Ryan Nadel (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/330927

Publication restriction:

Nil

Judgment

Introduction

1. These proceedings arise following the Waverley Council’s refusal of the applicant’s development application (DA-180/2022) (DA) for alterations and additions including reconfiguration of the existing unit, construction of stairs to access a new second floor addition with rear terrace at Unit 4, 81-83 O’Brien Street, Bondi Beach and identified as Lot 4 in SP 8546 (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 18 April 2023. I presided over the conciliation conference.

3. During the conciliation the parties agreed that all contentions in the Council’s Statement of Facts and Contentions (SOFAC) filed on 12 December 2022 have now been resolved by the preparation of the following documents:

1. Amended Architectural Drawings (Revision D);

2. Updated Shadow Diagrams dated 27 April 2023;

3. Schedule of Amendments;

4. Revised Clause 4.6 Written Variation Request – Floor Space Ratio;

5. Section 34 Agreement – Response to Contentions prepared by GSA Planning;

6. Revised BASIX Certificate;

7. Design Verification Statement;

8. ADG Compliance Statement; and

9. Stormwater Management Statement prepared by Studio Shand.

4. The Amended Architectural Drawings (Revision D) contain the following amendments:

1. Reduced the internal gross floor area to 29.41m² (from 39.27m²);

2. Improved the eastern/side setback of the addition (increased from 1,162mm to 1,373mm);

3. Lowered the maximum height of the addition (from RL 42.61 to RL 42.18) to enable the entire volume to sit below the building’s existing ridge and parapet (RL 42.28 and RL42.61 respectively);

4. Updated the roof form to slope 2 degrees, requiring the specification of a new roof/wall profile. This has allowed the eastern limit of the extension to sit below the eastern limit of the parapet (RL 42.03 and RL42.12 respectively);

5. Improved symmetrical presentation of proposal through maintaining the northern hip of the original tiled roof;

6. The terrace has been redesigned to present as an irregular triangular shape inclusive of new landscaping and balustrading details and storage provisions;

7. Amend the Level 2 scheme to present as secondary to the building’s existing form through a more compact presentation of internal spaces, and material re-specification to match the roofing and walling materials to present visible faces of the proposed addition as a single metal clad volume;

8. Re-consideration of glazing opportunities;

9. Improved symmetrical presentation via the removal of the Level 1 balcony;

10. Removed the proposed Level 1 adjustments to existing southern glazing;

11. Show the position of the air conditioning unit;

12. Show the position of solar panels on elevations; and

13. Update the schedule of finishes.

5. Following the amendment of the DA the parties now request that the matter be dealt with pursuant to s 34 of the LEC Act.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the 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 Environmental Planning and Assessment Act (EPA Act) to grant consent to the DA subject to conditions.

7. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties’ joint jurisdictional submission accompanying the s34 agreement. Based on the evidence I accept the parties’ joint submissions that the proposed development satisfies all relevant jurisdictional prerequisites required pursuant to s 4.15(1) of the EPA Act, for the following reasons.

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and Apartment Design Guide (ADG)

8. SEPP 65 applies as the building will be at least 3 storeys (subject to the proposed development) and contains at least 4 residential units (in accordance with cl 4(1)(b) and (c) of SEPP 65).

9. For the purposes of cll 28(2) and s30(2) of SEPP 65, the applicant has prepared a ADG Compliance Table, and I am satisfied that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the ADG for the relevant design criteria.

Section 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

10. For the purposes of s 29 of the EPA Regulation, the applicant has prepared a statement prepared by a qualified designer that verifies the qualified designer designed, or directed the design of the development, and explains how the development addresses the design quality principles and objectives in Parts 3 and 4 of the ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

11. On 1 March 2022, the RH SEPP came into force, replacing the State Environmental Planning Policy No 55—Remediation of Land and two other SEPPs.

12. Chapter 4 provides for the remediation of contaminated land. Section 4.6 provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated.

13. The site is not known to be contaminated and the historic use of the site does not suggest any risk of contaminated materials. The conditions of consent include at Condition 23, a condition for the appropriate management of asbestos if located during works (though there is not known to be any).

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

14. The proposed development includes a building, and as such the BASIX SEPP (cl 6) applies.

15. An updated BASIX Certificate has been provided in support of the Amended Architectural Drawings.

Waverley Local Environmental Plan 2012 (LEP)

16. The site is zoned R3 Medium Density Residential under the LEP. The use for a residential flat building is permitted with consent in the R3 Zone.

17. The Council submits and I accept that the proposed development is consistent with the objectives of the R3 Zone for the reasons outlined in the following: Part 1.0 of the SEE, Tab 3 of the Class 1 Application; Amended Clause 4.6 Written Variation Request dated May 2023.

18. For the purposes of cl 4.1 of the LEP, the DA does not propose subdivision into smaller lots.

19. For the purposes of cl 4.3 of the LEP, the proposed development results in a compliant building height.

20. The proposed development will not comply with the applicable floor space ratio (FSR) controls set out in cl 4.4 of the LEP. A cl 4.6 written variation request has been prepared by GSA Planning dated April 2023 in respect of that non-compliance which addresses the matters set out at cl 4.6(3) of the LEP including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

21. Pursuant to cl 4.6(4)(a), the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out…

22. Only if the requirements in cl 4.6(3) and (4) are met will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 per Preston CJ at [24].

23. I am satisfied for the reasons outlined in the written request that it is unreasonable and unnecessary to comply with the FSR control in the circumstances of this case and that there are sufficient environmental planning grounds to justify contravening the development standard.

24. I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the cl 4.4 development standard and the objectives for development within the R3 Zone in which the development is proposed to be carried out.

25. Finally, I accept after a consideration of the matters identified in cl 4.6(5) of the LEP that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020.

26. Having regard to all of the above matters, the parties consider that the Court may uphold the clause 4.6 variation request in relation to FSR.

27. For the purposes of cl 6.14 of the WLEP 2012, the DA does not comprise the erection of a building, but rather alterations and additions to an existing building. In any event, a Site Waste and Recycling Management Plan has been submitted as part of the Class 1 Application (Tab 14).

28. The applicant’s architect has prepared a statement to address the requirements of cl 6.15 of the WLEP 2012.

29. The DA was notified in accordance with Council’s Community Participation Plan 2019 and s 4.18 of the EPA Act. Council did not receive any objections in respect of the DA.

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

31. The Court notes:

1. The applicant has applied to, and Waverley Council as the relevant consent authority has agreed, pursuant to s 38 of the EPA Regulation, to amend DA No. DA-180/2022 by incorporating:

1. Amended Architectural Drawings (Revision D) prepared by Studio Shand (No. DA000, DA001, DA100, DA101, DA102, DA200, DA201, DA202, DA203, DA300, DA301, DA400, BASIX01);

2. Updated Shadow Diagrams dated 27 April 2023 prepared by Studio Shand;

3. Amended Clause 4.6 Written Variation Request dated May 2023 prepared by GSA Planning;

4. Design Verification Statement prepared by Studio Shand;

5. Apartment Design Guide Compliance Table prepared by Studio Shand;

6. Stormwater Management Addressal prepared by Studio Shand; and

7. Revised BASIX Certificate No. A432005_03.

2. The above documents were provided to the Court on 18 May 2023.

32. The Court orders:

1. The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

2. The applicant is to pay the respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the sum of $7,500 within 28 days.

3. The clause 4.6 written variation request dated May 2023 prepared by GSA Planning is upheld.

4. The appeal is upheld.

5. Development consent is granted to development application no. DA-180/2022 for alterations and additions to Unit 4 of the existing residential flat building at 81-83 O’Brien Street, Bondi Beach, subject to the conditions of consent in Annexure A.

…………………..

S Dixon

Senior Commissioner of the Court

Annexure A (275195, pdf)

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Decision last updated: 05 June 2023