Phung v Waverley Council

[2024] NSWLEC 1433

Land and Environment Court

New South Wales

Medium Neutral Citation:

Phung v Waverley Council [2024] NSWLEC 1433

Hearing dates:

Conciliation Conference 27,28 June 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development consent is granted to Development Application No. DA-466/2022 for demolition of existing structures and construction of a new three-storey residential flat building, with three, four bedroom units at 173 Blair Street, North Bondi, NSW 2026 known as Lot 73 in DP 11758, subject to conditions in Annexure A;

(3) The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $22,800.00 within 28 days of the final orders pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

The Court notes: The agreement of the parties that the costs referred to in Order 3 above are inclusive of all costs payable to and sought by the Respondent in the proceedings.

Catchwords:

DEVELOPMENT APPEAL – demolition and construction residential flat building – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Heritage Act 1977

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

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

Waverley Local Environmental Plan 2012, Sch 5 Pt 2, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.2, 6.14, 6.15

Texts Cited:

Waverley Development Control Plan 2012

Waverley Council Draft Heritage Assessment 2020

Category:

Principal judgment

Parties:

Thu Van Phung (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/191609

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Waverley Council (the Council) of DA-466/2022 (the Development Application) for demolition of existing structures and construction of a new three-storey residential flat building with three, four bedroom units at the property (Proposed Development) at 173 Blair Street, North Bondi NSW 2026, being Lot 73 in DP11758 (the Site).

2. This matter was listed for a hearing starting on Site. At the on site hearing the parties reached an in principle agreement that would resolve the appeal. The Court accepted the parties’ decision to resolve the appeal by way of a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) and the matter proceeded before me on that basis.

3. 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 and which addressed the Council’s contentions. The DA had been amended by the Court on a number of occasions. References to the DA means the DA as amended and the Proposed Development means the Proposed Development the subject of the DA as amended.

4. The agreed position is for the Court to uphold the Class 1 Appeal and grant development consent to the Proposed Development, with conditions at Annexure A.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

State Environmental Planning Instruments (SEPPs)

7. I have considered the jurisdictional provisions applicable to the proposed development that are raised by the following SEPPs, discussed in full in the parties Statement, and agree that no jurisdictional impediment arises:

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. State Environmental Planning Policy (Resilience and Hazards) 2021

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

8. I note a current BASIX certificate for the Proposed Development accompanies the documents before the Court.

Waverley Local Environmental Plan 2012 (WLEP 2012)

9. The Site is located within the R3 Medium Density Residential zone under WLEP 2012. The Proposed Development, being a residential flat building, is permissible with consent in the R3 zone. Clause 2.3(2) of WLEP 2012 requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are assessed at Section 4.2.4 of the SEE. On the basis of Section 4.2.4 of the SEE, the parties agree and I accept that there has been consideration of the objectives of the R2 zone in accordance with the obligation under cl 2.3(2) of the WLEP 2012.

10. The parties agree and I accept that the Proposed Development complies with the following relevant jurisdictional requirements in WLEP 2012.

1. clause 4.3(2) – maximum height of building of 12.5m: the proposed building has a maximum height of 9.328m.

2. clause 4.4(2) – maximum floor space ratio of 0.9:1: the proposed building has a maximum FSR of 0.88:1.

3. clause 5.10 – heritage conservation area: the parties are satisfied the Site does not contain a heritage item nor is it located within a conservation area as defined by Schedule 5 Part 2 of the WLEP 2012. However, the Site is located within the proposed Bondi Basin Inter-War Urban Conservation Area as outlined by the Waverley Council Draft Heritage Assessment 2020. The Site is within the vicinity of a State heritage item under the Heritage Act 1977, being the Bondi Ocean Outfall Sewer which is an underground tunnel below Blair Street. The Site is also located within the vicinity of the Blair Street Landscape Conservation Area, C23 as defined by Schedule 5 Part 2 of WLEP 2012. The parties agree that the matters required to be considered under cl 5.10 of WLEP 2012 have been considered in the Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated June 2023.

4. clause 6.1 – Acid Sulfate Soils: The Site is located within Class 5 Acid Sulfate Soils area (see SEE at p 35). Development consent is not required as the proposed works are not of a type referred to in the table at clause 6.1(2) in that the proposed construction will not cause lowering of the water table.

5. clause 6.2 – Earthworks: Given the topography of the Site, the extent of excavation is necessary to provide level access and floorplate for the ground level dwelling. The parties are satisfied that the earthworks will not have a detrimental impact on drainage patterns or soil stability (see Updated SEE at p 35, Geotechnical Report prepared by Precision Engineering Group dated 1 September 2022).

6. clause 6.14 – Waste minimisation and recycling: The parties are satisfied that the requisite waste minimisation and recycling considerations in cl 6.14 have been addressed and will be managed with the Operational Waste Management Plan (Rev D) prepared by Elephants Foot dated 22 April 2024.

7. clause 6.15 – Stormwater management: The parties are satisfied that the requisite stormwater management considerations in cl 6.15 have been addressed and will be managed in accordance with the Amended Concept Stormwater Plans (Rev I) prepared by Smart Structures Australia dated 26 April 2024.

Waverley Development Control Plan 2012 (WDCP 2012)

11. Section 4.15(1)(a)(iii) of the EPA Act requires the consent authority to take into consideration such of the following matters contained in WDCP 2012 as are of relevance to the DA. I am satisfied that the parties have considered the matters under the WDCP 2012 of relevance to the Proposed Development. I accept the parties analysis and conclusions set out in the Statement.

Public Participation and the Public Interest

12. The DA was notified to adjoining property owners and publicly advertised and exhibited for a period of 21 days from 09 September 2021 through to 23 September 2021. During this period, fourteen (14) unique submissions and two (2) proforma submissions were received. The main issues raised in the submissions included:

1. Building scale, setbacks, wall height and streetscape;

2. Excavation;

3. Privacy and overlooking impacts;

4. Overshadowing;

5. Landscaping and deep soil;

6. Length of building;

7. Pedestrian entry and communal space;

8. Site frontage min of 15m; and

9. Bin storage.

13. Other issues raised concern view loss, parking impacts, impact on a large African olive tree, overshadowing on photovoltaics of surrounding development and safety issues for pedestrians imposed by front boundary fence.

14. The parties consider that the objectors concerns are addressed by the amended architectural plans and conditions of consent at Annexure A.

15. The written submissions were before the Court and the Court heard from the neighbouring objectors on Site from within their properties and the street. I am satisfied that the neighbouring objectors have been accorded procedural fairness and the public interest has been met.

Conclusion

16. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

17. 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. 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.

Notations:

18. The Court notes:

1. The Respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA-466/2022 to include the amended plans referred to in condition 1 of the conditions annexed and marked “A”.

Orders:

19. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No. DA-466/2022 for demolition of existing structures and construction of a new three-storey residential flat building, with three, four bedroom units at 173 Blair Street, North Bondi, NSW 2026 known as Lot 73 in DP 11758, subject to conditions in Annexure A;

3. The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $22,800.00 within 28 days of these orders pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

The Court notes: The agreement of the parties that the costs referred to in Order 3 above are inclusive of all costs payable to and sought by the Respondent in the proceedings.

L Byrne

Acting Commissioner of the Court

191609.23 Annexure A 

**********

Decision last updated: 26 July 2024