Saturn Eight Pty Ltd v Waverley Council

[2019] NSWLEC 1341

Land and Environment Court

New South Wales

Medium Neutral Citation:	Saturn Eight Pty Ltd v Waverley Council [2019] NSWLEC 1341
Hearing dates:	Conciliation conference on 11 June 2019 and 1 July 2019
Date of orders:	23 July 2019
Decision date:	23 July 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	(1)   Leave is granted to the Applicant to amend Development Application No. DA/308/2018 the subject of these proceedings and to rely upon the amended plans referred to in Condition 1 of the attached conditions being Annexure ‘A’ to these orders; (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that are thrown away as a result of amending the development application in the amount of $13,000.00 within 28 days of these orders. (3)   The appeal is upheld. (4)   Development Application DA/308/2018 to demolish two single dwellings and construct 8 townhouses with integrated basement car parking at 607-609 Old South Head Road, Rose Bay is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Waverley Local Environmental Plan 2012
Texts Cited:	Waverley Development Control 2012
Category:	Principal judgment
Parties:	Saturn Eight Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) M Hanna, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/336573
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Saturn Eight Pty Ltd (the Applicant) lodged under s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by Waverley Council (the Council) of Development Application DA/308/2018 (the application).

2. The application as lodged sought consent under the EP&A Act to demolish two single dwellings and construct multi-dwelling housing comprising 8 townhouses with integrated basement car parking at 607-609 Old South Head Road, Rose Bay (the site).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council raised a number of concerns with the application as lodged including with the design quality, density/overdevelopment, the wall height of the building, floor space ratio (FSR), visual privacy, landscaping, height of fences, overshadowing and public interest.

8. The application was notified and 1 objection to the development was lodged.

9. The Council contentions were subsequently resolved during conciliation by revisions to the design of the development including having regard to relevant objections raised in the submission.

10. In this regard, with the filed agreement, that parties attached a Statement of Reasons for entering into the agreement and addressing the pre-conditions to the granting of consent.

11. The Statement of Reasons advises that the site is located within the R3 Medium Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (the LEP). The development is permissible with consent in that zone and meets the objectives of the zone.

12. The Council was satisfied that the amended application arising from conciliation addressed the original contentions including responding to the provisions of the Waverley Development Control Plan 2012 (the DCP).

13. The key change between the plans as originally submitted and those the subject of the agreement are:

• The development has been amended to comply with the maximum FSR applicable to the site.

• The development now complies with the maximum wall height control applying under the DCP in addition to complying with the maximum building height development standard under the LEP.

• The basement car parking level is now set back from the southern boundary and includes some ground level planting along this boundary.

• The building has been lowered to reduce the overshadowing impact on the adjoining property to the south to an acceptable level.

• Amended stormwater and landscape plans were provided.

14. An updated Certificate was also provided with the agreement demonstrating the development’s compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, being BASIX Certificate No.955364M_02 dated 6 July 2019. The agreed consent conditions require compliance with this Certificate.

15. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application. The Council advised that the site has only been used for residential purposes and does not require any remediation.

16. Accordingly, the Court orders that:

1. Leave is granted to the Applicant to amend Development Application No. DA/308/2018 the subject of these proceedings and to rely upon the amended plans referred to in Condition 1 of the attached conditions being Annexure ‘A’ to these orders;

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that are thrown away as a result of amending the development application in the amount of $13,000.00 within 28 days of these orders.

3. The appeal is upheld.

4. Development Application DA/308/2018 to demolish two single dwellings and construct 8 townhouses with integrated basement car parking at 607-609 Old South Head Road, Rose Bay is approved subject to the conditions at Annexure “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (167 KB, pdf)

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Decision last updated: 23 July 2019