Shrimpton v Waverley Council

[2023] NSWLEC 1685

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shrimpton v Waverley Council [2023] NSWLEC 1685

Hearing dates:

Conciliation Conference 16 and 17 October 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-411/2022, as amended, for demolition and construction of a new two-storey dwelling with basement double car parking, solar panels, swimming pool at rear and tree removal at 3 Calga Avenue, Bronte on land identified as Lot 3 in DP 362444 is determined by the grant of consent subject to conditions contained in Annexure A.

(3) The Applicant is to file the plans and documents referred to in order (2) within 7 days of judgment being delivered.

Catchwords:

APPEAL – Residential development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.11, 8.14

Environmental Planning and Assessment Regulation 2021, s 37

Land and Environment Court Act 1979, ss 17, 34, 34AA,

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

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

Waverley Local Environmental Plan 2012 cll 2.7, 4.3, 4.4, 6.1, 6.2.

Texts Cited:

Waverley Development Control Plan 2012

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Marc Shrimpton (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2023/123806

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-411/2022) (Development Application) seeking consent for the demolition of existing structures and construction of a new two-storey dwelling with basement, double car parking, solar panels, pavilion, swimming pool at rear and tree removal on land identified as Lot 3 in Deposited Plan 362444, known as 3 Calga Avenue, Bronte (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application was lodged with the respondent on 29 September 2022.

4. On 18 April 2023, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

5. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 16 and 17 October 2023. I presided over the conciliation conference.

6. Amended plans were provided to the Court on 17 October 2023 (Amended Development Application) cited at [36]. The amendments included the following:

1. increased rear and side setbacks;

2. lowering of the height of the roof and pavilion;

3. increased privacy treatments to the rear façade;

4. reduction in basement excavation;

5. reduction in GFA; and

6. “chamfer” configuration of south western corner of the first floor.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

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

Jurisdictional considerations

9. 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 for the reasons that follow.

Owner’s consent

10. The applicant is the registered proprietor of the Site and both owners of the Site provided consent to the Development Application when it was lodged with the respondent.

State Environmental Planning Policy (Resilience and Hazards) 2021 – Coastal use

11. The Site is identified as a “Coastal Use Area” as defined by the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP).

12. Pursuant to s 2.11 of the RH SEPP, development consent must not be granted to development on land that is within the coastal use area unless the consent authority has considered and is satisfied of various matters.

13. The parties agree that all relevant matters required to be considered have been considered and that those matters set out in s 2.11(1)(b)(i)-(iii) have been satisfied by the Amended Development Application.

14. I have reviewed the Statement of Environmental Effects which accompanied the Development Application prepared by aSquare Planning dated September 2022 (SEE). The SEE considers the matters listed in s 2.11 of the RH SEPP and concludes that:

“The proposal will not affect public access to the foreshore, will minimise overshadowing to public places to the foreshore and will provide a dwelling that has been designed to be in keeping with the scale and character of the locality. The proposed development will therefore not have a detrimental impact to the visual amenity and scenic qualities of the coast.

The site is not located in a conservation area and is not identified as a heritage item. There are no heritage items located nearby to the site.”

15. In determining the Amended Development Application, I have given consideration to the matters set out in s 2.11(1)(a), am satisfied of the matters set out in s 2.11(1)(b), and have taken into account s 2.11(1)(c) of the RH SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021 – Contamination

16. Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

17. I accept the parties’ submission that the requirements of s 4.6 of the RH SEPP have been considered and that the Site is suitable to accommodate the development the subject of the Amended Development Application. In determining the Amended Development Application, I have considered the matters set out in s 4.6(1) of the RH SEPP, and have had regard to the fact that the Site has a longstanding history of residential use and is unlikely to be contaminated.

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

18. The Amended Development Application is accompanied by a BASIX certificate (Cert No 1319797S_04, dated 19 October 2023) prepared by GAT & Associates in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

Waverley Local Environmental Plan 2012

19. The Site is zoned R2 Low Density Residential under the Waverley Local Environmental Plan 2012 (WLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below (as they were at the time of the lodgement of the Development Application):

• 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.

20. For completeness, Waverley Local Environmental Plan 2012 Amendment 24 was published on 30 September 2022 (after the Development Application was lodged on 29 September 2022) which relevantly introduced the following additional objectives in the R2 Low Density Residential zone:

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

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

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

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

21. I have also had regard to these additional objectives.

22. The Development Application was notified between 7 and 26 October 2022. Nine written submissions objecting to the proposed development were received in response to the notification of the proposal.

23. The parties agree that re-notification of the Amended Development Application was not required on the basis that the environmental impacts of the amendments were the same or less than the original proposal.

24. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

25. Pursuant to cl 2.7 of the WLEP, the demolition of a building or work may be carried out only with development consent. The parties agree that to the extent demolition is proposed by the Amended Development Application, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.

26. Pursuant to cl 4.3 of the WLEP, a maximum height development standard of 8.5m applies to the Site. The parties agree that the Amended Development Application complies with this standard.

27. Pursuant to cl 4.4(2) of the WLEP, a maximum floor space ratio (FSR) development standard of 0.599:1 applies to the Site. The parties agree that the Amended Development Application complies with this standard.

28. Pursuant to cl 6.1 of the WLEP, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The parties agree that although the Site is identified as being within a Class 5 Area for the purposes of the Acid Sulfate Soils Map, the Amended Development Application does not involve 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. The parties therefore agree that cl 6.1 of the WLEP is not enlivened in respect of the Amended Development Application.

29. Pursuant to cl 6.2(3) of the WLEP, the consent authority must consider various matters before granting development consent for earthworks or development involving ancillary earthworks. The Amended Development Application proposes excavation for the proposed basement and swimming pool and therefore seeks consent for excavation and earthworks.

30. The parties agree that the matters listed in cl 6.2(3) of the WLEP are addressed by the following:

1. Geotechnical Report prepared by White Geotechnical Group dated 17 August 2022 which accompanied the Development Application;

2. stormwater plans which accompanied the Development Application; and

3. the agreed conditions of consent, in particular:

1. Condition 10 Erosion and sediment control

2. Condition 11 Details of excavation, shoring and pile construction

3. Condition 14 Stormwater and public infrastructure

4. Condition 20 Dilapidation report

5. Condition 23 Control of dust

6. Condition 25 Excavation and backfilling

7. Condition 32 Swimming pool

31. In determining the Amended Development Application, I have reviewed the above documentation and considered the matters listed in cl 6.2(3) of the WLEP.

Waverley Development Control Plan 2012

32. The parties have considered the Waverley Development Control Plan 2012 Amendment No 9 in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

33. For completeness, the Waverley Development Control Plan 2022 (WDCP 2022) was made subsequent to the lodgement of the Development Application. However, the parties agree that pursuant to the savings provisions of WDCP 2022, it does not apply to the Development Application.

Conclusion

34. 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.

35. 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.

36. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its development application so as to rely on the following documents:

Amended Architectural Plans
Plan description	Plan No and rev	Prepared by	Dated
Site Plan	DA01 Issue G	Michael Cumming Architect	16.10.23
Existing and Demolition Plan	DA02 Issue D	Michael Cumming Architect	01.09.23
Basement Floor Plan	DA03 Issue G	Michael Cumming Architect	16.10.23
Ground Floor Plan	DA04 Issue H	Michael Cumming Architect	19.10.23
First Floor Plan	DA05 Issue H	Michael Cumming Architect	19.10.23
Roof Plan	DA06 Issue H	Michael Cumming Architect	19.10.23
Section A	DA07 Issue G	Michael Cumming Architect	16.10.23
Section B	DA08 Issue G	Michael Cumming Architect	16.10.23
Section C	DA09 Issue G	Michael Cumming Architect	16.10.23
Section D	DA10 Issue H	Michael Cumming Architect	19.10.23
North Elevation	DA20 Issue G	Michael Cumming Architect	16.10.23
South Elevation	DA021 Issue G	Michael Cumming Architect	16.10.23
East Elevation	DA22 Issue G	Michael Cumming Architect	16.10.23
West Elevation	DA23 Issue H	Michael Cumming Architect	19.10.23
GFA Calculation	DA40 Issue G	Michael Cumming Architect	16.10.23
External Finishes Schedule	DA41 Issue G	Michael Cumming Architect	16.10.23
Supporting Documentation
Survey Plan	A	Hill and Blume	14.04.23
Schedule of Amendments	N/A	Michael Cumming Architect	16.10.23
View Analysis	N/A	AE Design	Sept 2023
Solar access plans	DA30-DA53	Michael Cumming Architect	1.9.23
Parking Design Statement	Ref: 0798r01v01	PDC Consultants	13.09.2023
BASIX Certificate No. 1319797S_04	1319797S_04	Gat & Associates	19.10.23

Orders

37. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-411/2022, as amended, for demolition and construction of a new two-storey dwelling with basement double car parking, solar panels, swimming pool at rear and tree removal at 3 Calga Avenue, Bronte on land identified as Lot 3 in DP 362444 is determined by the grant of consent subject to conditions contained in Annexure A.

3. The Applicant is to file the plans and documents referred to in order (2) within 7 days of judgment being delivered.

N Targett

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 15 November 2023