Portier Family Pty Ltd v Waverley Council

[2024] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:

Portier Family Pty Ltd v Waverley Council [2024] NSWLEC 1156

Hearing dates:

Conciliation conference held 27 October, 17 November, 11 December 2023, 29 January, 12 and 27 February, and 5 and 11 March 2024

Date of orders:

05 April 2024

Decision date:

05 April 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)    Leave is granted to the Applicant to amend Development Application DA-44/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $18,000 within 28 days of the date of these orders.

(3)    The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

(4)    The appeal is upheld.

(5)   Development consent is granted to Development Application DA-44/2023 (as amended) for demolition of the existing building and construction of a three-storey shop-top housing development comprising four residential units, two retail tenancies and integrated garage parking at 112 O’Brien Street, Bondi Beach, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop-top housing – existing use rights – cl 4.6 written request – floor space ratio – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.65, 4.67, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38, 163, 164

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

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

State Environmental Planning Policy (Housing) 2021, ss 145, 147, Sch 9

Waverley Local Environmental Plan 1985

Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.15

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

Portier Family Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

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

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

File Number(s):

2023/170913

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Portier Family Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-44/2023 (the DA) by Waverley Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of the existing building and the construction of a new three-storey mixed-use development comprising six residential units, two retail tenancies and integrated garage parking at 112 O’Brien Street, Bondi Beach (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 October, 17 November and 11 December 2023, 29 January, 12 and 27 February, and 5 and 11 March 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of bulk and scale, exceedance of the floor space ratio (FSR), inadequate building setbacks and separations, excessive external wall height, unrelieved building length, unreasonable overshadowing impacts, excessive excavation, inadequate internal amenity and inadequate landscaping, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the streetscape, to reduce offsite impacts and building separations, improve the landscape design and resolve amenity satisfactorily. The design amendments reduce the total number of residential units accommodated on the site from six to four.

6. 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 the function under s 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 21 March to 11 April 2023. Eight submissions were received by the Respondent raising concerns for inadequate dimensions of parking spaces, view impacts, loss of amenity and outlook, impacts upon natural ventilation available to neighbouring properties, overdevelopment of the site and inconsistency with the FSR development standard, acoustic and visual privacy impact, off site overshadowing impacts, traffic and parking congestion, and inconsistency with the character of the streetscape.

10. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent now satisfactorily resolve the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument.

12. At the date of its lodgement, The DA was characterised by the Applicant as mixed-use development, comprising retail and residential uses. However, the Respondent considers such a development should be characterised as shop-top housing.

13. The WLEP dictionary defines shop-top housing as “one or more dwellings located above the ground floor of a building, where at least the ground floor is used for commercial premises or health services facilities.”

14. Pursuant to the WLEP, the site is zoned R3 Medium Density Residential and, although development for the purposes of mixed-use is permissible, development for the purposes of shop-top housing is prohibited.

15. Although the Applicant does not accept this characterisation, in the interest of reaching agreement in this matter the parties do agree that if the DA is characterised as shop-top housing, then the issue of permissibility may be resolved by applying the existing use rights provisions at ss 4.65 and 4.67 of the EPA Act and ss 163 and 164 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

16. The parties agree, and I am satisfied, that existing use rights arise where the site is being used for a lawful purpose immediately before an environmental planning instrument comes into force, which would otherwise have the effect of prohibiting that use.

17. The onus then falls to the Applicant to establish existing use rights, and the Court benefits from two comprehensive submissions, which the parties agree and I am satisfied, demonstrate that immediately prior to becoming a prohibited use, the site was lawfully being used for shop-top housing.

18. The parties agree, and I am satisfied, that the Applicant’s submissions identify that:

1. The date at which shop-top housing became a prohibited use, was likely to have been 27 September 1985, the date at which the Waverley Local Environmental Plan 1985 commenced.

2. An approval dating from 1960, BR-261/1960, has been located and refers to an existing “shop and dwelling” on the site, with proposed alterations and additions to construct a new shop and three-bedroom dwelling above, which can properly be characterised as shop-top housing.

3. The existing approval BR-261/1960 refers to a shop and dwelling at 112 O’Brien Street, Bondi Beach and no additional uses or additional land.

19. Section 164 of the EPA Reg permits an enlargement, expansion or intensification of an existing use, so long as this occurs only on the site (and not on any additional land) and for the existing use (and no additional uses).

20. Accordingly, the parties agree and I am satisfied, that existing use rights have been appropriately demonstrated and that the DA is made permissible despite the prohibition of development for the purposes of shop-top housing.

21. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the R3 Medium Density Residential zone objectives, which include 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 increase or preserve residential dwelling density, and to provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.

22. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures on the site is permissible with consent.

23. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.4 - Floor Space Ratio.

24. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

25. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

26. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

27. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the FSR development standard, prepared by ABC Planning and dated November 2023.

28. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The amended DA proposes a FSR of 1.2:1, exceeding the development standard of 0.9:1 by approximately 106sqm and representing a variation to the standard of approximately 32.5%.

2. The amended DA is agreed to be of a form and scale that is compatible with the three- and four-storey existing O’Brien Street streetscape and desired future character of the locality, and at three-storeys is designed to sit well within the maximum allowable height of building development standard.

3. The DA has been amended during the conciliation conference to resolve the Respondent’s contentions, such that issues of off-site overshadowing, building separation, cross viewing and the maintenance of adequate outlook are agreed to have been appropriately addressed.

4. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include 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 increase or preserve residential dwelling density, and to provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood. I am satisfied the amended DA meets these objectives.

5. The objectives of cl 4.4 of the WLEP include to provide an appropriate correlation between maximum building heights and density controls, to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, and to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality. I am satisfied the amended DA meets these objectives.

29. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

30. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a heritage conservation area. The site is however in close proximity to a listed heritage item, a Federation style semi-detached house.

31. The parties agree, and I am satisfied, that the amended DA creates no unreasonable impacts upon this nearby heritage item.

32. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not situated within a flood planning area.

33. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is not mapped within any acid sulfate soils area.

34. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant’s Statement of Environmental Effects includes an assessment of the impact of proposed excavation upon the matters set out at cl 6.2(3). Agreed conditions of consent relating to excavation are imposed.

35. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the WLEP - Terrestrial biodiversity - the site is not mapped within a terrestrial biodiversity area.

36. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP - Stormwater management - the DA is accompanied by a stormwater management plan that includes measures to control stormwater collection and disposal consistent with those matters set out at cl 6.15(3) of the WLEP.

37. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The Applicant has provided a Preliminary Site Investigation, prepared by Sullivan Environmental Sciences and dated 27 November 2023. The report concludes that the site has been used for purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

38. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

39. Pursuant to s 145 of SEPP Housing, the Respondent referred the DA to its design review panel on 12 April 2023. Advice received from the design review panel has been considered by the parties and has informed design amendments made to resolve the Respondent’s contentions in this matter.

40. Further, the Applicant's architect, Studio Johnston Architects (and its nominated architect Mr Conrad Johnston - NSW registered architect 8270) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg confirming that the amended DA achieves the design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

41. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004. Pursuant to s 27 of the EPA Reg, a BASIX certificate No 1356340M_02, dated 20 December 2023, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

42. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

43. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 29 January 2024.

Orders

44. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-44/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $18,000 within 28 days of the date of these orders.

3. The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

4. The appeal is upheld.

5. Development consent is granted to Development Application DA-44/2023 (as amended) for demolition of the existing building and construction of a three-storey shop-top housing development comprising four residential units, two retail tenancies and integrated garage parking at 112 O’Brien Street, Bondi Beach, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Decision last updated: 05 April 2024