Reswent Pty Ltd v Waverley Council - [2021] NSWLEC 1388

Land and Environment Court

New South Wales

Medium Neutral Citation: Reswent Pty Ltd v Waverley Council [2021] NSWLEC 1388
Hearing dates: 11-12 May 2021
Date of orders: 6 July 2021
Decision date: 06 July 2021
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach is refused.
(3) All exhibits are returned, except for A, B and 7.

Catchwords:
DEVELOPMENT APPLICATION – heritage conservation area – residential apartment development in low density residential zone – existing use – whether compliance with development standard is unreasonable or unnecessary

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.67, 8.7
Environmental Planning and Assessment Regulation 2000, cll 41, 42, 44, 50
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6

Cases Cited:
Arbib v Waverley Council [2018] NSWLEC 1475
Bouchard v Waverley Council [2019] NSWLEC 1449
Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112
STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495
Wehbe v Pittwater Council(2007) 156 LGERA 446; [2007] NSWLEC 827
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Apartment Design Guide
Waverley Development Control Plan 2012

Category: Principal judgment
Parties: Reswent Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
S Berveling (Applicant)
M Staunton (Respondent)
Solicitors:
Jaku Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2020/253427
Publication restriction: No

Judgment

COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Waverley Local Planning Panel on behalf of Waverley Council (the Respondent) of Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach (the site).
At the commencement of the hearing, the Applicant sought leave, unopposed by the Respondent, to amend the application and rely upon amended plans and other documents that are said to arise from the joint conferencing of experts. The amendments may be summarised as follows:

1 x car parking space deleted in favour of storage

Amended gradient to car park ramp

Amended materials and finishes

Amended view from the sun diagrams

Written request to vary the height standard, later marked Exhibit E

Written request to vary the floor space ratio (FSR) standard, later marked Exhibit F

The plans for which leave was granted were added…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWLEC 1388
Decision Date: 06 July 2021

CaseChat Overview and Summary

Reswent Pty Ltd sought to appeal a decision by Waverley Council refusing development consent for a proposed residential development at Bondi Beach. The appeal was heard and dismissed by the Land and Environment Court of New South Wales. The primary dispute was whether the proposed development was consistent with the local environmental plan and other relevant planning controls.

The court had to determine whether the proposed three-storey residential flat building was consistent with the local environmental plan and other planning controls, and whether the refusal of development consent was lawful. The court examined the compatibility of the proposed development with the Bondi Beach Neighbourhood Plan, the Coastal Protection Management Plan, and other relevant policies and guidelines. Additionally, the court considered the impact of the proposed development on the surrounding environment, including visual impact, traffic, and noise.

The court found that the proposed development was not consistent with the Bondi Beach Neighbourhood Plan, which designated the site for medium density residential use only. The court also found that the proposed development would have significant adverse impacts on the surrounding environment, including visual impact and traffic congestion. The court held that the refusal of development consent was lawful and dismissed the appeal. The court also refused development consent for the proposed development.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach is refused.

(3) All exhibits are returned, except for A, B and 7.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Reswent Pty Ltd v Waverley Council [2021] NSWLEC 1388
Hearing dates:	11-12 May 2021
Date of orders:	6 July 2021
Decision date:	06 July 2021
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi Beach is refused. (3) All exhibits are returned, except for A, B and 7.
Catchwords:	DEVELOPMENT APPLICATION – heritage conservation area – residential apartment development in low density residential zone – existing use – whether compliance with development standard is unreasonable or unnecessary
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.67, 8.7 Environmental Planning and Assessment Regulation 2000, cll 41, 42, 44, 50 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6
Cases Cited:	Arbib v Waverley Council [2018] NSWLEC 1475 Bouchard v Waverley Council [2019] NSWLEC 1449 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 Wehbe v Pittwater Council(2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Apartment Design Guide Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Reswent Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) M Staunton (Respondent) Solicitors: Jaku Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2020/253427
Publication restriction:	No