Shrimpton v Waverley Council

[2023] NSWLEC 1709

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shrimpton v Waverley Council [2023] NSWLEC 1709

Hearing dates:

Conciliation conference held on 13 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 dated 13 November 2023 prepared by A Square Planning is upheld.

(2) The appeal is upheld.

(3) Development Application DA-230/2022 (DA) for alterations and additions to the dwelling including the construction of a double garage, skylight, new swimming pool and deck at the rear on land identified as Lot D in DP314150 located at 494 Bronte Road Bronte is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA, 39

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 2.11, Ch 4, s 4.6

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 6.2

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

A Smith (Applicant)
J Ede (Solicitor) (Respondent)

Representation:

Solicitors:
Boskovitz Lawyers (Applicant)
Willshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/149466

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction by the applicant, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 230/2022 (DA) by the Waverley Local Planning Panel. The respondent in the proceedings is Waverley Council (Council).

2. The DA, as amended, seeks consent for alterations and additions to an existing dwelling house at 494 Bronte Road, Bronte being Lot D in Deposited Plan 314150 (site). The amendments were intended to address contentions raised by Council and included the reduction in building bulk, changes to articulation, changes to the landscape plans and the changes to the driveway among other things.

3. In regard to the amendments, it is noted that:

1. Waverley Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the DA to rely on the documents listed below:

ARCHITECTURAL PLANS PREPARED BY CHAPMAN ARCHITECTURE
Plan Number and Revision	Plan description	Plan Date	Date received by Council
DA-00 – Rev L	Cover sheet – location plan and site analysis	13 November 2023	13 November 2023
DA-01 – Rev L	Existing basement plan	13 November 2023	13 November 2023
DA-02 – Rev L	Existing lower ground floor plan	13 November 2023	13 November 2023
DA-03 – Rev L	Existing ground floor plan	13 November 2023	13 November 2023
DA-04 – Rev L	Existing first floor plan	13 November 2023	13 November 2023
DA-05 – Rev L	Proposed Basement plan	13 November 2023	13 November 2023
DA-06 – Rev L	Proposed lower ground floor plan	13 November 2023	13 November 2023
DA-07 – Rev L	Proposed ground floor plan	13 November 2023	13 November 2023
DA-08 – Rev L	Proposed first floor plan	13 November 2023	13 November 2023
DA-09 – Rev L	Proposed roof plan (site plan)	13 November 2023	13 November 2023
DA-10 – Rev L	Proposed Elevations and external finishes schedule	13 November 2023	13 November 2023
DA-11 – Rev L	Proposed west elevations	13 November 2023	13 November 2023
DA-12 – Rev L	Proposed east elevation	13 November 2023	13 November 2023
DA-13 – Rev L	Proposed long section	13 November 2023	13 November 2023
DA-14 – Rev L	Proposed long section	13 November 2023	13 November 2023
DA-15 – Rev L	Proposed cross sections	13 November 2023	13 November 2023
DA-16 – Rev L	BASIX Information	13 November 2023	13 November 2023
DA-17 – Rev L	GFA diagrams	13 November 2023	13 November 2023
DA-19 – Rev L	Proposed street parking plan	13 November 2023	13 November 2023
DA-32 – Rev L	Streetscape analysis	13 November 2023	13 November 2023
DA-33 – Rev L	Landscape area plan	13 November 2023	13 November 2023

Supporting Documentation
Survey Plan	A	ESA Survey	31.10.2023
Clause 4.6	N/A	A Square Planning	13 November 2023
Shadow Diagram	L	Chapman Architecture	13 November 2023
BASIX Certificate No. A457473_04	A457473_04	Chapman Andrew	8 November 2023
Landscape Plan prepared by Chapman Architecture DA-18	Rev L	Chapman Architecture	13 November 2023

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 November 2023, and at which I presided. The proceedings commenced with an on-site inspection, at which one objector spoke. Soon after the commencement of conciliation the parties indicated agreement had been reached. The agreement between the parties was signed on 14 November 2023.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Jurisdiction

6. The parties’ decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined matters of relevance in an agreed statement of jurisdictional prerequisites dated 13 November 2023. Regarding jurisdiction, and noting this advice, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Relevant to Ch 2, the parties advise that the site is identified as falling within a Coastal Use Area. The parties agree that all relevant matters required to be considered in this chapter in general, and with respect to s 2.11 in particular, have been given due consideration. The parties also agree that the matters listed at s 2.11(b) have been satisfied, as relevant, with the amended plans. I have considered whether the proposed development is likely to cause any adverse impacts with respect to the matters listed at s 2.11(1)(a). Overall I am satisfied that the development as amended, and with conditions as agreed, is designed, sited and will be managed to avoid an adverse impact of the kind referred to in s 2.11(1)(a), or if that impact cannot be reasonably avoided, the development is design, sited and will be managed to minimise that impact.

8. In regard to Ch 4 (concerned with remediation of land) and s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that there is no known prior use to the property that would suggest potential contamination. I have considered whether the subject land is contaminated, and like the parties, I accept that no further action is required under s 4.6(1).

Waverley Local Environmental Plan 2012

9. The Site is zoned R2 Low Density Residential pursuant to Waverley Local Environmental Plan 2012 (WLEP). Development for the purposes of dwelling houses is permissible in Zone R2. I have had regard to the zone objectives as required under cl 2.3(2). Demolition is permissible with consent under cl 2.7.

10. Clause 4.3 of the WLEP and the Height of Buildings Map fixes a maximum building height of 8.5m for the Site. The proposal would contravene this development standard. I attend to the contravention a little later.

11. The proposal would satisfy the FSR control under cl 4.4, according to the agreed position of the parties.

12. Although there is only a small amount of excavation involved in the proposal, the requirements of cl 6.2 are triggered. The parties have drawn my attention to the matters listed at cl 6.2(3) and explained how relevant matters have been considered and appropriate conditions of consent applied. The jurisdictional requirements relating to cl 6.2 have been met.

Contravention of the height of building development standard

13. The parties agree on the various characteristics of the height contravention which vary somewhat across the site due to its steep gradient. The maximum building height is indicated as approximately 11.11 m providing for a maximum contravention of some 2.61 m. Clause 4.6(2) provides power for the granting of consent notwithstanding this contravention. This power is subject to certain preconditions which I will work through now. Mindful of cl 4.6(2), the applicant provided a written request seeking to justify the contravention. The written request was prepared by A Square Planning and was dated 13 November 2023.

14. Under cl 4.6(4)(a) a consent authority must form two positive opinions of satisfaction if the facilitative powers of cl 4.6(2) are to be enlivened. The first is that the applicants’ written request has adequately addressed the matters required to be addressed by cl 4.6(3). These matters are: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether compliance unreasonable or unnecessary in the circumstances of the case

15. The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.3 are as follows:

(a) to ensure building 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 locality.

16. The written request demonstrates that Objective (a) is achieved through its explanation of detailed evidence (undisputed by Council) that, notwithstanding the proposed building height, the proposal will preserve solar access, views and privacy to surrounding properties and public spaces. The written request demonstrates that Objective (c) is achieved through the detailed evidence in particular by way of shadow diagrams (again undisputed by Council) that satisfactory solar access to existing buildings and public areas and public spaces is maintained. The written request demonstrates that Objective (d) is achieved through its explanation of the particulars of the changes in building height (noting that the existing building exceeds the height control at a maximum height of 12.6 m) and explaining that there would be little in the way of perception of difference between the proposal and the existing character, and what might otherwise be interpreted as the desired future character of the locality. Objective (b) is not relevant. The written request has demonstrated that compliance with the height development standard is unreasonable and unnecessary in that the objectives of the height standard are achieved despite the contravention.

Whether there are sufficient environmental planning grounds

17. The written request raises a number of planning grounds seen to justify the contravention. Sufficient here is that the proposal provides for a fairly major renovation of an existing dwelling with considerable retention of the existing structure. It is reliance on this existing structure (rather than demolition and reconstruction) which brings about the result of the building height contravention. As argued in the written request, in such instances, where in addition: (1) the existing and a number of surrounding buildings already breach the height standard and (2) it has been demonstrated that no environmental amenity implications result from the height contraventions; there are sufficient environmental planning grounds to justify the contravention of the height development standard.

18. I am satisfied that the applicants’ written request has adequately addressed the matters required to be addressed by cl 4.6(3): (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether it is in the public interest

19. The second positive opinion of satisfaction relating to the enlivening of the facilitative powers of cl 4.6(2) are that the proposed development will be in the public interest because the development is consistent with the objectives of the contravened development standard and the relevant zone. This finding of satisfaction is a direct one for the consent authority, or in this case the Court.

20. I adopt the reasoning contained in the written request to find that the development is consistent with the objectives of the contravened development standard (ie cl 4.3).

21. The zone objectives are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maximise public transport patronage and encourage walking and cycling.

• To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time.

• To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability.

• To promote development that incorporates planning and design measures that reduce the urban heat island effect.

• To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

22. The proposal will assist in the provision of housing supply and in providing for the housing needs of the community, while retaining the low density residential environment. The first and fifth zone objectives are achieved. The second zone objective is not relevant. The site is located in good proximity to local buses and is in an area with relatively good levels of walking and cycling and the proposal can be expected to add patronage. To the extent that approval of alterations and additions can assist in meeting the third zone objective, the proposal can be expected to do so. I am convinced by the agreement of the parties on the quality of the presentation of the proposal to the street and public areas, and in regard to proposal landscaping, as now amended, that the fourth zone objective has been achieved. The sixth and seventh zone objectives have been achieved with amendments to the proposal which incorporate additional deep soil and site landscaping.

23. With the above findings, the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Conclusion in regard to development standard contravention

24. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5). I have considered these matters and find nothing of significance arises.

25. In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) is enlivened have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the building height standard at cl 4.3.

Other provisions of s 4.15(1) of the EPA Act

26. The parties have advised me of submissions received in regard to the DA, submitting that the plan amendments address concerns raised. I do note the submission made by an individual objector on site, which I have put to the Council and received a reasoned response in regard to. The parties have assisted me with information relating to Waverley Development Control Plan 2012 but nothing arises requiring jurisdictional findings. I have also generally considered likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

27. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

28. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

29. The Court orders that:

1. The written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 dated 13 November 2023 prepared by A Square Planning is upheld.

2. The appeal is upheld.

3. Development Application DA-230/2022 (DA) for alterations and additions to the dwelling including the construction of a double garage, skylight, new swimming pool and deck at the rear on land identified as Lot D in DP314150 located at 494 Bronte Road Bronte is determined by the grant of consent subject to conditions contained in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 24 November 2023