Roth Architecture Workshop Pty Ltd v Waverley Council

[2023] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation:

Roth Architecture Workshop Pty Ltd v Waverley Council [2023] NSWLEC 1161

Hearing dates:

Conciliation conference on 28, 29 March 2023

Date of orders:

06 April 2023

Decision date:

06 April 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The written request under clause 4.6 of the Waverley Local Environmental Plan 2012 prepared by Planning Ingenuity, and dated 28 March 2023, for a variation to the height of building development standard in clause 4.3 of the Waverley Local Environmental Plan 2012 is upheld.

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA 226/2022 seeking the partial demolition of an existing approved dual occupancy, change of use to dwelling house, and alterations and additions for a new dwelling house with associated car parking and landscaping, at premises known as 69 Edward Street, Bondi Beach, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: Conversion of an existing dual occupancy to a single residential dwelling – amended plans – conciliation conference -agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, s 34AA

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, 4.3, 4.6, 6.1, 6.2, 6.15 

Category:

Principal judgment

Parties:

Roth Architecture Workshop Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
L Mulligan, Solicitor (Respondent)

Solicitors:
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/329286

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 by Roth Architecture Workshop Pty Ltd (Applicant) against the deemed refusal of a development application DA-226/2022 by Waverley Council (Respondent). The development application seeks consent for the conversion of an existing building, approved as a dual occupancy to a single dwelling with an integrated garage. The development application also proposes extensive alterations and additions, including a first floor addition and a swimming pool to the rear. The subject land is known as 69 Edward Street, Bondi Beach (Lot 9 in DP 9638) (Site).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 28 March 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents that they considered resolved the contentions before the Court. That agreement is for the grant of the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. Owner’s consent has been given to the Applicant for lodgement of the development application.

2. The development application was notified by the Respondent for a period of 14 days ending on 30 August 2022. No submissions were received during the notification period. However, during the onsite component of the proceedings, the Court was addressed by a representative of an adjoining property. In determining the development application, I have given consideration to these submissions and the public interest.

3. As the proposal is for alterations and additions to an existing dwelling house with a total development cost of more than $50,000, pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) and the Environmental Planning and Assessment Regulation 2000, the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.

4. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, prior to the grant of consent, I am required to consider whether the land is contaminated. The Statement of Environmental Effects notes that the Site has only been used for residential purposes. The physical works proposed as part of this application do not include significant excavation or earthworks. I am satisfied on the basis of the longstanding residential use of the Site, it is unlikely to be contaminated and is suitable for the proposed use.

5. The Site is located within the R2 Low Density Residential zone under the Waverley Local Environmental Plan 2012 (LEP 2012). Development for the purposes of dwelling houses and alterations and additions to existing dwelling houses are permitted with consent in the zone (cl 2.3 of the LEP 2014). In determining the development application, I have given consideration to the objectives of the zone.

6. The proposed development does not comply with the maximum height standard of 8.5m. The Applicant relies on a written request pursuant to cl 4.6 of LEP 2012 seeking to vary the building height standard as the proposed building has a maximum height of 10.11m.

1. The written request accords with the amended plans and seeks a variation to the height development standard. I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met, notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) of LEP 2012, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

7. Clause 6.1 of LEP 2012 relates to development on land identified on the Acid Sulfate Soils Map. The land the subject of the development application is not shown on the acid sulphate soils map as falling within any of the classes of land specified in that clause. Therefore, a preliminary assessment is not required.

8. Clause 6.2: Earthworks in LEP 2012 applies. The earthworks for the alterations and additions are minor, principally for footings. However, excavation is required for the proposed pool. As required by cl 6.2: Earthworks of LEP 2014 in determining the development application, I have given consideration to the matters listed at subcl (3). Planning Ingenuity have prepared a letter outlining the extent of earthworks and I accept the agreement of the parties that the clause has been satisfactorily addressed. In giving consideration to these matters, I am satisfied that none of the factors listed at subcl (3) warrant the refusal of the application.

9. Clause 6.15 of LEP 2012 relates to stormwater management and, based upon the stormwater plans and information received by the Respondent from Sydney Water, I accept that cl 6.15 has been satisfied.

4. 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.

5. 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.

6. The Court notes that the Respondent, as the relevant consent authority has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 226/2022 in accordance with the updated documents referred to at Condition 1 of the conditions of consent contained at Annexure A.

Orders

7. The Court orders that:

1. The written request under clause 4.6 of the Waverley Local Environmental Plan 2012 prepared by Planning Ingenuity, and dated 28 March 2023, for a variation to the height of building development standard in clause 4.3 of the Waverley Local Environmental Plan 2012 is upheld.

2. The appeal is upheld.

3. Development Consent is granted to Development Application DA 226/2022 seeking the partial demolition of an existing approved dual occupancy, change of use to dwelling house, and alterations and additions for a new dwelling house with associated car parking and landscaping, at premises known as 69 Edward Street, Bondi Beach, subject to the conditions contained in Annexure A.

…………………………..

D Dickson

Commissioner of the Court

Annexure A (288574, pdf)

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Decision last updated: 06 April 2023