Roumanous v Waverley Council

[2019] NSWLEC 1323

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roumanous v Waverley Council [2019] NSWLEC 1323
Hearing dates:	Conciliation conference on 2, 3 and 5 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1(a) at Annexure ‘A’, subject to Plan No. DA-03 Rev C dated 2 July 2019 being setback further from “4780mm first floor setback” to 5000mm. (2)   Leave is granted to the Applicant to amend Development Application DA-219/2018 to seek approval for the demolition of the existing semi-detached dwelling and construction of a part two, part three storey semi-detached dwelling, garage, landscaping and associated works at 9 Philip Street Bondi. (3)   The appeal in respect of the property known as 9 Philip Street, Bondi, is upheld. (4)   Development Application DA-219/2018 for demolition of the existing semi-detached dwelling and construction of a part two, part three storey semi-detached dwelling, garage, landscaping and associated works at 9 Philip Street Bondi is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – semi-detached dwelling – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Norm Roumanous (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: M Parrino, Project Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/358220
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing semi-detached dwelling and construction of a part two, part three storey semi-detached dwelling, garage, landscaping and associated works at 9 Philip Street, Bondi. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 2 July 2019, and continued on 3 and 5 July 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application (subject to a further change to be made to increase the setback of the first floor), and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 have formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties is met, for the following reasons:

• The development application was made with the consent in writing of Bianca Christina Gallifuoco, who is the owner of the land (Lot B in Deposited Plan 438820, known as 9 Philip Street, Bondi) to which it relates.

• Pursuant to Waverley Local Environmental Plan 2012 (“WLEP 2012”), the development works are for the purpose of a semi-detached dwelling, which is a permissible use in the R2 Low Density Zone in which the site is located.

• The development does not contravene any development standard in the WLEP 2012 or any other applicable environmental planning instrument.

• The development application (as amended) was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000 and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

• The development is also required to comply with the provisions of State Environmental Planning Policy No 55 – Remediation of Land and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The site is currently occupied by a semi-detached dwelling and has a history of residential land use. The proposal does not seek to alter the categorisation of land use and the Council records do not indicate that the site has been developed or used for activities that may cause contamination.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1(a) at Annexure ‘A’, subject to Plan No. DA-03 Rev C dated 2 July 2019 being setback further from “4780mm first floor setback” to 5000mm.

2. Leave is granted to the Applicant to amend Development Application DA-219/2018 to seek approval for the demolition of the existing semi-detached dwelling and construction of a part two, part three storey semi-detached dwelling, garage, landscaping and associated works at 9 Philip Street Bondi.

3. The appeal in respect of the property known as 9 Philip Street, Bondi, is upheld.

4. Development Application DA-219/2018 for demolition of the existing semi-detached dwelling and construction of a part two, part three storey semi-detached dwelling, garage, landscaping and associated works at 9 Philip Street Bondi is approved subject to the conditions at Annexure “A”.

.……………………….

J Gray

Commissioner of the Court

Annexure A (88.4 KB, pdf)

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Decision last updated: 09 July 2019