Scahill v Waverley Council

[2024] NSWLEC 1024

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scahill v Waverley Council [2024] NSWLEC 1024

Hearing dates:

27, 28 November and 22 December 2023

Date of orders:

30 January 2024

Decision date:

30 January 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that have been thrown away in respect of the Amended Development Application (and the amendments for which leave was granted on 28 November 2023), as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to DA-308/2022 for the demolition of two semi-detached dwellings and construction of a four-storey residential flat building containing four residential apartments and associated basement car parking, on land identified as Lots A and B in DP 444868, located at 8 - 10 Sir Thomas Mitchell Road, Bondi Beach, subject to the conditions set out in Annexure "A".

(4) All exhibits except for A, H, J and 1 are returned.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of new residential flat building – contentions resolved by joint conferencing of the experts and amendment to the development application – public submissions – appeal upheld

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 29, 38

Land and Environment Court Act 1979, s 34

State Environment Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, cll 4, 28, 30

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9, 6.15

Cases Cited:

Tenacity v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Phillip Scahill (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Pickles SC and J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Keith Bagley Lawyer (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/379827

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The Applicant, Mr Phillip Scahill, appeals to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Waverley Council’s decision to refuse his development application, DA 308/2002. The development application seeks consent for the demolition of the existing pair of semi-detached dwellings and construction of a four-storey residential flat building containing four residential apartments and associated basement car parking. The development is proposed at 8 - 10 Sir Thomas Mitchell Road, Bondi Beach.

2. The proceedings were listed for conciliation on 31 May 2023 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated on the same day as the parties were unable to reach agreement.

3. By way of Notice of Motion, the Applicant was granted leave by the Court to amend their development application through amended architectural plans and other supporting documents on 3 August 2023. The amended development application was the subject of joint conferencing between the traffic, heritage, urban design and planning experts.

The proceedings

4. At the commencement of the hearing the Applicant sought and was granted leave to amend their development application to respond, in part, to the evidence of the experts.

5. On the second day of the proceedings the parties experts agreed, through their oral evidence, that subject to some further changes to the amended development application, it would be acceptable and resolve the contentions in the proceedings. Those changes include:

1. A further setback to the top floor of the proposed building;

2. The provision of privacy hoods to the windows fronting the side boundary; and

3. A further increase to the side setback of the basement level.

6. At the hearing, Mr Patterson, representative for the Respondent, confirmed that on the basis of the expert evidence, the contentions would be resolved if those changes were made to the proposed development.

7. On this basis, the Court made the following orders:

1. The Applicant is to prepare a set of amended architectural plans and other development application components as required that is responsive to the agreed oral evidence of the planning and urban design experts by no later than 8 December 2023.

2. The Respondent is to provide a written response to the Applicant's updated stormwater plans in Exhibit C by 8 December 2023.

3. The Respondent is to advise if it consents to the Applicant amending their development application in the terms of the documents arising from order (1) and any comments by 15 December 2023.

4. The parties are to file an agreed set of conditions and a jurisdictional note by 15 December 2023.

5. The Hearing is adjourned for any oral submissions on 21 December 2023 at 4:30pm.

8. Order (5) was subsequently vacated, and the matter was listed at 9am on 22 December 2023. At that time, Mr Patterson confirmed that the Respondent is satisfied that the final amended plans (those dated 18 December 2023) resolve the issues raised by them in the Amended Statement of Facts and Contentions, dated 30 August 2023.

The outcome

9. The outcome of the proceedings is that the development application, as finally amended to reflect the agreement of the experts, is determined by the grant of consent, subject to the annexed conditions of consent.

10. Notwithstanding the position of the parties, I am nevertheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents, and the public interest.

11. For the reasons that are set out below, I find that each of the contentions raised by the Council have been resolved. I am satisfied that the matters raised by the resident objectors have either been adequately addressed, or do not warrant refusal of the development application.

The site and locality

12. The Site is located on the south-western side of Sir Thomas Mitchell Road, Bondi Beach. Campbell Parade is located approximately 20m to the east of the Site. It comprises two separate allotments and is generally rectangular in shape, with an area of 581.7m². The site falls from the rear south-western boundary towards the north-eastern front boundary by approximately 5m.

13. An aerial photograph of the Site is set out below, the eastern part of the Site being marked yellow.

Figure 1: Aerial photograph with the site marked in yellow (Source: start="14">

To the south-east of the Site is a part four and part six storey development, known as the Astra Retirement Village complex at 34 Campbell Parade, Bondi Beach. It has a café at ground floor with residential units above. It is a locally listed heritage item under the Waverley Local Environmental Plan 2012 (LEP 2012).

Adjoining the site to the north-west is a two-storey residential flat building at 12 Sir Thomas Mitchell Drive. Similar to the other residential flat building development further to the west, it has characteristically narrow side setbacks.

Directly opposite the Site to the north-east, on the opposite side of Sir Thomas Mitchell Road, are four-storey mixed use developments located on and adjacent to Campbell Parade.

Public Submissions

17. The development application was notified by Waverly Council from 23 August to 13 September 2022. At the close of the notification period, 11 objections were received. The submissions raised the following issues:

• Overshadowing and impacts on solar access,

• Visual bulk and scale,

• Loss of views,

• Loss of property value,

• Visual and acoustic privacy,

• Increased traffic and impacts on parking in the area,

• Overdevelopment.

(Exhibit 1)

18. At the commencement of the proceedings, the parties and the Court attended a number of adjoining properties and heard from objecting parties about their concerns with the proposed development. I am satisfied that the submissions have been considered in the determination of the development application and, where appropriate, have resulted in amendments to the application or the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

19. The parties agree, and I accept, that the amended plans do not require renotification as they are responsive to the objections received and reduce the impacts of the proposed development.

Jurisdictional matters

20. The development application was lodged with the consent of the owners of the land as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

21. The amended development application is accompanied by a BASIX certificate dated 27 November 2023, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004.

22. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) applies to the development application as the building will be at least three storeys and contains at least four residential units (in accordance with subcll 4(1)(b) and (c) of SEPP 65).

23. For the purposes of cll 28(2) and 30(2) of SEPP 65, the Applicant has prepared a SEPP 65 Report and Design Verification Report, and I am satisfied that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria.

24. For the purposes of s 29 of the EPA Regulation, the Applicant has prepared a statement prepared by a qualified designer that verifies the qualified designer designed, or directed the design of the development, and explains how the development addresses the design quality principles and objectives in Parts 3 and 4 of the ADG.

25. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the site is identified as mapped within the Coastal Use Area. The development application includes an addendum to the Statement of Environmental Effects (SEE) which addresses s 2.11 of SEPP RH. The parties agree, and I accept with the assistance of this statement, that all relevant matters required to be considered in Ch 2 have been considered and that those matters in subss 2.11(b)(i)-(iii) have been satisfied by the amended development application.

26. Pursuant to s 4.6 of SEPP RH, a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The site is not known to be contaminated and the historic residential use of the site does not suggest any risk of contaminated materials. The conditions of consent include, at Condition 36, a condition for the appropriate management of asbestos if located during works (though there is not known to be any).

27. The development application seeks demolition which is permitted with consent pursuant to cl 2.7 of LEP 2012. Pursuant to LEP 2012, the site is zoned R3 Medium Density Development. Development for the purpose of semi-detached dwellings is permitted with consent in the R3 Medium Density Residential zone. In determining the development application, I have had regard to the objectives of the zone.

28. Pursuant to cl 4.3 of LEP 2012, the site has a maximum height of building standard of 12.5m. The development application proposes a maximum height of 13.58m. The development application includes a written request that seeks to vary the height standard. The variation is particularised as follows:

• the maximum height of the building is the lift overrun, measured at RL 37.50 AHD, resulting in a height of 13.48m, which is 0.98m (7.8%) over the standard. This is measured from the top of the lift overrun to the existing ground level immediately below; and

• the maximum height of the roof is measured at RL 37.50 AHD, resulting in a height of 13.48m, which is 0.98m (7.8%) over the standard. This is measured from the top of the main roof level to the existing ground level immediately below.

29. The written request makes the following broad arguments in support of the variation:

• the planning controls, including a building height development standard of 12.5 metres envisage a four-storey built form on the site. The Proposed development is four storeys in height;

• the relevant height exceedance is minor, and limited to part of the roof.

• the height exceedances involve negligible impacts in terms of view sharing, privacy, solar access and visual amenity;

• the non-compliance with the building height controls is in a part of the building located away from the eastern boundary to minimise the impact on amenity to the adjacent Astra building. The lift overrun has been reduced;

• overall, the Proposed Development has been skilfully designed to ensure that it involves reduced impacts compared to a proposal compliant with the height standard;

• The proposal complies with the floor space ratio (FSR) for the site and does not represent an overdevelopment of the site.

• The height exceedance arises, in part, from the topography of the site.

• The proposal maintains a three- storey frontage at the front elevation when viewed from Sir Thomas Mitchell Road. Further, the attic level is located within a mansard roof structure to minimise visual impact from neighbouring properties and the streetscape.

30. The approach of the written request to addressing the jurisdictional requirements of cl 4.6 of LEP 2012 is outlined in the following.

Clause 4.6(3)(a): compliance with the standard is unreasonable or unnecessary in the circumstances of the case.

31. The argument advanced in the written request is that compliance with the height standard is unreasonable and unnecessary as the objectives of the standard are met despite the variation. The objectives of cl 4.3 Height of Buildings are:

“(a) to ensure buildings heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b) to accommodate taller buildings on land in Zone E2 Commercial Centre in the Bondi Junction Centre and establish a transition in scale between adjoining zones to protect local amenity,

(c) to maintain satisfactory solar access to existing buildings and public areas.

(d) to establish building heights that are consistent with the desired future character of the area.”

32. It is relevant to summarise here the assessment in the written request about the amenity impacts of the proposed development as they are also raised in submissions from the public.

33. The written request assesses the view impact of the proposed development on 27 and 29 Francis Street and 34 Campbell Parade. That assessment utilises the planning principle detailed in Tenacity v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140. Having applied this principle and it’s four step assessment process, the written request concludes:

“a comparison between the proposal and a compliant envelope that extended to the maximum allowable height and setbacks under their LEP and DCP would be considered a more appropriate test than a comparison between the existing and proposed.

…

It is acknowledged that a compliant built form will result in the loss of the obscured water view from Nos. 27 and 29 Francis Street, and the extent of the height exceedance does not create any further loss of view. However even if the tree was removed and the built form was reduced to comply with the height standard, it will result in the same extent of view loss.”

(Exhibit L)

34. The written request assesses the potential for privacy impacts arising from the height exceedance. It concludes that as the height non-compliance relates predominantly to the man side roof, lift overrun and stair, there are no additional privacy impacts.

35. I note conditions in Annexure A include the requirement for all high-level windows on the eastern elevation to have hoods to prevent use of the habitable windows of the property at 34 Campbell Parade. Further, privacy screens or frosted glass are required to all study windows on the eastern elevation of the proposed development. I am satisfied that these conditions ameliorate privacy concerns raised in the public submissions.

36. Further, the written request assesses the potential impact on solar access arising from the height exceedance. The request makes reference to “views from the sun” diagrams prepared by A E Design that the proposal will:

“...retain solar access (to varying degrees) to the top floor windows of the adjoining Astra building for at least three hours in midwinter. It is also noted that despite the height exceedances, the proposal will retain solar access to more west facing windows within the rear portion of the Astra between 11 and three, compared to a fully compliant building envelope. Accordingly, in our opinion, solar access to existing buildings and public areas is satisfactorily maintained.”

(Exhibit L)

37. The amenity impacts arising from the proposed development was the subject of oral evidence which identified some final changes to the proposed development that had the effect of further reducing any overshadowing impact to the Astra Apartments. The final amendments to the lift core and stairs have further reduced the overshadowing impacts arising from the development.

38. Finally, the written request assesses the potential impact on visual amenity arising from the development. It concludes that the new development will facilitate an architecturally designed residential flat development and that the height variation will not be readily apparent in the streetscape. The written request gives weight to the context of the site. That context being the adjoining four-storey Astra building, the proximity of the B4 Mixed Use Zone, and the nearby residential flat buildings in Sir Thomas Mitchell Road. The written request concludes that the proposal provides an appropriate transition between the Astra to the east and the residential flat buildings to the west and through the Mansard roof design, will present to the street as three storeys.

39. I note that the agreed oral evidence of the experts was that the amenity impacts of the proposed development, as now amended, are acceptable and do not warrant the refusal of the application.

40. On the proceeding basis I am satisfied that 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).

Clause 4.6(3)(b): there are sufficient environmental planning grounds to justify the contravention of the development standard.

41. In reaching this state of satisfaction, the Court must be satisfied that the grounds relied on by the applicant in the written request are “environmental planning grounds” by their nature and are sufficient. Further, the focus of cl 4.6(3)(b) of LEP 2012 is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds.

42. The written request advances grounds broadly characterised as: redistribution of allowable floor space, the slope of the land (underlying topography), an appropriate transition in height (consistency with the height, bulk and scale of approved development in the vicinity of the site) and good design and amenity (exceedance above height plans is necessary for the form of the building and has limited external amenity impacts).

41. I accept the agreement of the parties that the written request establishes sufficient environmental planning grounds to justify the variation sought.

42. On the proceeding basis, I am satisfied that 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).

43. 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 R3 Medium 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.

44. 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.

45. 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.

46. Pursuant to cl 4.4 Floor space ratio of LEP 2012, the amended development application is compliant with the floor space ratio of 0.9:1 which applies to the site.

47. The Site is not a heritage item and is not located within a heritage conservation area for the purposes of cl 5.10 of the LEP 2012. The agreed expert heritage evidence is that the development has an acceptable impact on a listed heritage item located on adjacent land at 34 Campbell Parade, Bondi Beach, known as the Astra Retirement Village complex. I accept and agree with that evidence. In determining the development application, I have considered the effect of the development on the significance of the Astra Retirement Village and I am satisfied that the impact is acceptable.

48. Clause 6.1 of the LEP 2012 applies to acid sulfate soils. It requires development consent for works described in the table at cl 6.1(2) and requires an acid sulfate management for these works (at cl 6.1(3)). This clause is addressed in the Addendum SEE. By reference to this document, I accept the agreement of the parties that this clause does not apply to the proposal. Although for the purposes of row 5 in the table, the Site is identified as being in a Class 5 area on the LEP 2012 Acid Sulfate Soil Map, it does not include works by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

49. The development application proposes excavation for the proposed basement. Accordingly, cl 6.2 of LEP 2012 applies. Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters listed at cl 6.2(3) of the LEP 2012. These include:

“(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.”

52. This clause is also addressed in the Addendum SEE. By reference to this document, I accept the agreement of the parties that this clause is satisfied by the development and the conditions in Annexure A.

53. Clause 6.9 of LEP 2012 does not apply to the proposed development as it is not located on the Key Sites Map.

54. Clause 6.15 of LEP 2012 relates to stormwater management. Clause 6.15(3) provides that, in deciding whether to grant development consent for development to which the clause applies, the consent authority must be satisfied the development:

(a) is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact.

55. This clause is also addressed in the Addendum SEE. By reference to this document, I accept the agreement of the parties that this clause is satisfied by the development and the conditions in Annexure A.

56. The Waverley Development Control Plan 2012 (DCP 2012) applies to the site. The statement of environmental impacts details the compliance of the proposed development with DCP 2012. In determining the development application, I have considered the provisions of the development control plans: s 4.15(1) of the EPA Act. I am satisfied that an assessment of the development does not support the refusal of the application.

Merit assessment

Bulk, scale and built form

57. Mr Patterson for the Council confirms that the contention that the proposed development should be refused due to the proposed development’s “excessive bulk and scale” and its failure to achieve the Design Quality Principles for built form and scale set out in SEPP 65 and the ADG, is resolved by the amended development application.

58. I note that in response to this contention, the Court had the benefit of evidence from Mr Rohan Dickson, an urban design expert and Mr George Karavanas, an expert town planner called by the Applicant and Mr Tim Williams, an urban design expert, and Mr Mark Adamson, an expert town planner called by the Respondent. These experts prepared a joint report and gave oral evidence. During their cross examination all experts agreed that the proposed development as finally amended resolved any previous concerns in relation to the bulk scale and built form of the proposed development.

59. I accept the agreed evidence of the experts that the amended development application does not generate any detrimental impacts in relation to bulk scale or built form that warrant the refusal of the development application.

Height

60. The Council’s previous contention in relation to non-compliance with a maximum building height is addressed at pars [28]-[46].

61. I find that the amended development application complies with the maximum height standard at cl 4.3 of LEP 2012 and that the height of the building does not generate any detrimental impacts that warrant the refusal of the development application.

Setbacks and separation

62. Mr Patterson for the Council confirms that the contention that the proposed development should be refused due to insufficient separation distance and side setbacks is resolved by the amended development application and the condition of consent detailed at par [35].

63. I note that the amended development application is now compliant with a minimum side setback control of 1.5 m in DCP 2012.

64. I note the agreed oral evidence of the experts that the amended development application resolves any previous concern in relation to non-compliance with DCP 2012 and any unreasonable privacy impact.

Objections

65. As noted at par [17], a number of members of the public raised concerns about the potential impacts of the proposed development. As detailed in the preceding paragraphs, I am satisfied concerns related to the external impacts of the development and the form of the proposed residential flat building have been resolved and do not warrant the refusal of the development application.

66. The issue remaining in the submissions that has not yet been canvassed is concerns in relation to increased traffic and impacts on parking in the area. The issue of parking and access was the subject of joint conference between Mr Hollyoak and Mr Frawley. These experts prepared a joint report which was filed in the proceedings as Exhibit 5. The joint report notes the agreement of the experts, that subject to conditions incorporated in Annexure A, the design of the proposed driveway is acceptable. I note that the proposed development is compliant with DCP 2012 in terms of parking provision. Pursuant to s 4.15(3A) of the EPA Act, a consent authority cannot require a more onerous standard.

67. Having undertaken an assessment of the amended development application against the matters for consideration at s 4.15 of the EPA Act, I am satisfied that the development application should be determined by the grant of consent, subject to the annexed conditions.

Conclusion

68. For the above reasons, the contentions raised by the Council on the appeal have now been addressed through the amendments to the proposed development, conditions of development consent or on the basis of expert evidence. Further, I am satisfied that the preconditions to the exercise of the Court’s jurisdiction have been met. It is therefore appropriate to make orders for development consent to be granted to the development application subject to the conditions of consent that are agreed by the parties.

69. The Court notes:

1. The Respondent, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, consents to the amendment of Development Application No. 308/2022 as follows:

1. Architectural plans prepared by AE Design Partnership identified below and schedule of amendments:

Plan and Rev	Plan description	Plan Date
A1003 B	Existing site Plan	4/12/23
A1030 B	Demolition Plan	4/12/23
A1100 D	Site Plan	18/12/23
A1101 E	Basement Plan	18/12/23
A1200 D	Ground Floor Plan	4/12/23
A1200 B	Ground Floor Plan (rear)	4/12/23
A1201 D	Typical Floor Plan (Level 1 & 2)	4/12/23
A1203 E	Attic Plan	18/12/23
A1205 D	Roof Plan	18/12/23
A1300 E	Sections (AA & BB)	18/12/23
A1301 E	Sections (CC)	4/12/23
A1302 C	Section DD	4/12/23
A1400 E	Elevations (North)	4/12/23
A1401 D	Elevations (East)	18/12/23
A1402 E	Elevations (West)	4/12/23
A1403 E	Elevations (South)	18/12/23
A1830 B	Schedule of Materials	4/12/23

2. Landscape Plan No. 23-4874 LO1 to LO4 (Rev D) and documentation prepared by Zenith Landscape Designs, dated 20 December 2023;

3. Clause 4.6 Request for Building Height Development Standards prepared by GSA Planning dated 20 December 2023 and list of amendments;

4. The addendum to the Statement of Environmental Effects prepared by GSA Planning dated 28 November 2023;

70. As noted at pars [4]-[5], the development application was amended during the proceedings. The Respondent seeks orders pursuant to s 8.15(3) in respect of each amendment. Section 8.15(3) provides as follows:

(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.

71. The Applicant does not oppose these orders and agrees with the Respondent’s submission that the amendments made, when considered in the context of the application, are not minor. I accept the agreement of the parties that the changes are not minor and, accordingly, make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment.

Orders

72. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that have been thrown away in respect of the Amended Development Application (and the amendments for which leave was granted on 28 November 2023) as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to DA-308/2022 for the demolition of two semi-detached dwellings and construction of a four-storey residential flat building containing four residential apartments and associated basement car parking, on land identified as Lots A and B in DP 444868, located at 8 - 10 Sir Thomas Mitchell Road, Bondi Beach, subject to the conditions set out in Annexure "A".

4. All exhibits except for A, H, J and 1 are returned.

D Dickson

Commissioner of the Court

Annexure A

**********

Decision last updated: 30 January 2024