Sinn v Waverley Council

[2021] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sinn v Waverley Council [2021] NSWLEC 1244

Hearing dates:

28 April 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The orders of the Court are:

(1) By consent, the appeal is upheld.

(2) The Applicant’s development application DA-301-2019 for demolition of an existing building and hard paved areas and construction of a four-storey residential flat building with a total of ten (10) units, including six (6) affordable housing units, basement car parking and associated landscaping at 81 Anglesea Street, Bondi is determined by the grant of consent, subject to the conditions annexed hereto at Annexure ‘A’.

(3) The exhibits are returned, except for Exhibits A and 1.

Catchwords:

DEVELOPMENT APPLICATION – consent orders – affordable housing – potential view loss impacts – potential parking impacts – resident objectors – public interest

Legislation Cited:

Conveyancing Act 1919, s 88E

Environmental Planning and Assessment Act 1979, ss 4.15(1), 4.15(3A), 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77, Sch 1 cl 2A

Land and Environment Court Act 1979, s 17

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 13, 14, 15, 16A, 17, 49

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28

Waverley Local Environment Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.4, 6.5

Cases Cited:

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

Texts Cited:

COVID-19 Pandemic Arrangements Policy

Practice Note – Class 1 Development Appeals

Waverley Community Development Participation and Consultation Plan 2019

Waverley Development Control Plan 2012 (Amendment No. 6)

Category:

Principal judgment

Parties:

John Sinn (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
T To (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/403325

Publication restriction:

No

Judgment

1. COMMISSIONER: John Sinn (the Applicant) has appealed the deemed refusal by Waverley Council (the Respondent) of his development application (DA-301-2019) for demolition of an existing building and hard paved areas and construction of a four-storey residential flat building (RFB) with a total of ten (10) units, including six (6) affordable housing units, basement car parking and associated landscaping (the Proposed Development) at 81 Anglesea Street, Bondi (the Subject Site).

2. The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined subject to the provisions of s 4.16 of that Act. The proceedings fall within Class 1 of the Court’s jurisdiction under the provisions of s 17 the Land and Environment Court Act 1979 (the LEC Act). The Parties advised that the contentions between them had been resolved and they now come before the Court seeking orders by consent.

3. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was undertaken at the commencement of the hearing.

4. At the site view oral submissions were taken on site from the following objectors who had also provided further written submissions relating to the Applicant’s Proposed Development:

1. Mr John Shelley, proprietor of a business located in a workshop building on land immediately adjacent to the Subject Site and who raised the following concerns in relation to the Proposed Development:

1. the potential of excavation works associated with the Proposed Development on the heritage listed building within which his business operated;

2. the potential day to day impact of construction works associated with the Proposed Development on the conduct of his business operating in a building adjacent to the Subject Site;

3. his need to ensure the safety of works in his business.

2. Ms Olena Moskalenko, a resident of an apartment on Flood Street, located immediately to the rear of the Subject Site who said that she also spoke on behalf of other residents in her apartment block, and who raised the following concerns in relation to the Proposed Development:

1. the potential noise impacts arising from future residents of the Proposed Development;

2. potential privacy impacts from the Proposed Development and in particular balconies on the western façade of the proposed RFB;

3. trespassing on the land owned by her apartment complex as a consequence of residents of the Proposed Development using the right of carriage access path from Flood Street to the rear of the Subject Site;

4. potential impacts of the proposed Development on views she enjoyed from her unit across Bondi to the ocean;

5. the impact of the proposed Development on property values in the area.

Application for consent orders

5. The Court’s Practice Note – Class 1 Development Appeals (at par 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application:

“[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

6. During the hearing the Respondent advised that it had notified all objectors on 22 April 2021 that this appeal had been listed for consent orders on 28 April 2021, and that the hearing would commence with an on-site view at 9:30am.

7. This notification followed a series of previous notifications to objectors during the month prior to the hearing of the appeal, advising objectors that the Parties were close to resolution of contentions in the appeal, and that it was likely that the Parties would seek orders by consent as the basis for requesting that the Court dispose of the appeal.

8. The Respondent also advised that:

1. it had shared with the objectors in advance of the hearing, the proposed consent orders to be sought by the Parties and the proposed conditions of consent that would be presented to the Court.

2. it had also confirmed to the objectors that, based on the advice of their experts, and having considered their submissions, the Parties had resolved all contentions in the appeal.

9. I am satisfied that the Respondent made all reasonable efforts, including by way of notification, to contact objectors to the Applicant’s modification application and to ensure that they were advised of the time and date of the consent orders hearing, and of the opportunity to make representations to the Court in these proceedings.

10. At the commencement of the hearing the Parties noted that following the lodgement of the Applicant’s Class 1 appeal documentation and plans, the Court had granted leave to rely on amended plans on 16 March 2021.

11. The Applicant sought further leave to amend its plans in relation to:

1. an amended BASIX certificate, BASIX stamped architectural plans, a SEPP65 design verification statement, and an arboricultural impact assessment report;

2. two further amended plans of the basement and level 1 layouts of the Proposed Development.

12. Leave was granted to the Applicant to rely on the materials identified above at [11], without objection.

13. Before the Court can grant consent, the Parties must also demonstrate that the relevant statutory provisions applicable to the Proposed Development have been met, and that the concerns of objectors have been properly taken into account.

14. The Parties addressed these matters during the hearing at Court.

Jurisdictional considerations

Environmental Planning and Assessment Act 1979

15. Section 4.15(1) of the EP&A Act provides:

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

16. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority -

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

State Environmental Planning Policy (Affordable Rental Housing) 2009

17. The following provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the Proposed Development:

1. clause 10, in relation to which:

1. residential flat buildings are permissible in the R3 Medium Density Zone;

2. the Subject Site is not heritage listed; and

3. the Subject Site is in an accessible location as defined under the SEPP ARH;

2. clause 14 which provides standards that cannot be used to refuse consent to the Proposed Development, and in relation to which:

1. the Subject Site has an area of at least 450m²;

2. more than 15% of the Subject Site would constitute deep soil under the Proposed Development as the Proposed Development would provide 94.9m² of deep soil equating to 17.2% of the site area;

3. more than 30% of the Subject Site is proposed to be landscaped area as the Proposed Development provides for 170.9m² or 31% of landscaped area;

4. the living rooms and areas of private open space will receive a minimum of 3 hours direct sunlight between 9am and 3pm mid- winter under the Proposed Development; and

5. the dwellings within the Proposed Development comply with the minimum dwelling size provisions of cl 14 of SEPP ARH;

3. the provisions of cl 15 of SEPP ARH do not apply to the Proposed Development by operation of cl 4 of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP65);

4. clause 16A in relation to which the Parties’ experts have determined, and I am satisfied, that the Proposed Development is compatible with the character of the local area;

5. Pursuant to cl 17 of SEPP ARH conditions have been imposed by the consent authority to the following effect:

1. for 10 years from the date of the issue of an occupation certificate for the Proposed Development -

1. the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing; and

2. all accommodation that is used for affordable housing will be managed by a registered community housing provider; and

2. a restriction will be registered, before the date of the issue of an occupation certificate, against the title of the property on which the Proposed Development is to be carried out, in accordance with s 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.

18. The provisions of Part 3 of the SEPP ARH do not apply to the Proposed Development because:

1. clause 49 of SEPP ARH states that:

“This part applies to a low-rental residential building on land on land within the following areas….”

2. a low-rental residential building is defined as “a building used, during the relevant period, as a residential flat building containing a low rental dwelling or as a boarding house”; and

3. the existing building on site is a single dwelling and is not either a residential flat building or a boarding house.

State Environmental Planning Policy No 55—Remediation of Land

19. Clause 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP55) provides that:

A consent authority must not consent to the carrying out of any development on land unless -

(a) it has considered whether the land is contaminated, and

(b) 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

(c) 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.

20. The Parties have advised, and I am satisfied, that a Detailed Site Investigation has been undertaken on the Subject Site and a Remediation Action Plan (RAP) together with an Interim Audit Statement have been provided by the Applicant. As a consequence, I am also satisfied that the Subject Site can be made suitable for its intended use as medium density residential development, subject to the remediation works identified within the RAP being undertaken as recommended, and as required by the agreed conditions of consent.

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

21. A BASIX Certificate (No. 1042992M_02) has been provided by the Applicant in relation to its Proposed Development, as amended in satisfaction of the provisions of both State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

22. The Parties advise, and I am satisfied, that design of the Proposed Development complies with the relevant provisions of SEPP65, including the provisions of cl 28, and an updated Design Verification Statement has been provided by the Applicant which demonstrates this compliance.

Waverley Local Environmental Plan 2012

23. Under the provisions of cl 2.3 of Waverley Local Environmental Plan 2012 (WLEP) the Subject Site is zoned R3 Medium Density Residential. The objectives of this zone are to:

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

• provide a variety of housing types within a medium density residential environment.

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

• maximise public transport patronage and encourage walking and cycling.

24. A residential flat building of the sort proposed by the Applicant in its development application is a permitted use in the R3 Medium Density Residential zone applicable to the Subject Site.

25. The following provisions of WLEP are of relevance in this appeal:

1. clause 2.7 concerning demolition which is permissible with consent on the Subject Site;

2. clause 4.3 concerning the height of buildings (HoB), which provides that a HoB development standard of 12.5m applies to the Subject Site, and the Proposed Development complies with this standard;

3. clause 4.4 which provides that the floor space ratio (FSR) development standard applicable to the Subject Site is 0.9:1. The Applicant’s Proposed Development benefits from a FSR uplift of 0.5:1 pursuant to the provisions of cl 13 of SEPP ARH, establishing an applicable FSR of 1.4:1 for the Proposed Development with which it complies.

4. clause 6.2 concerning earthworks which are required to be undertaken as part of the Proposed Development. The Parties advise, and I am satisfied, that they have considered the matters identified within cl 6.2(3) of WLEP. Further, the Parties have confirmed that a Geotechnical Report and Engineering Works Report have been provided by the Applicant to demonstrate that the Proposed Development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land and that the objective of cl 6.2 is achieved.

26. The Parties have also confirmed, and I am satisfied, that the Subject Site is not identified on the following maps, and the provisions of the relevant clauses in WLEP to which they relate, as identified below, do not apply to the Proposed Development.

1. the Land Reservation Acquisition Map (cl 5.1);

2. the Acid Sulfate Soils Map (cl 6.1)

3. the Flood Planning Map as flood prone land (cl 6.3)

4. the Terrestrial Biodiversity Map (cl 6.4);

5. the Active Street Frontages Map (cl 6.5).

Waverley Development Control Plan 2012

27. Waverley Development Control Plan 2012 (Amendment No. 6) (WDCP) was in force at the time that the Applicant lodged its development application for the Proposed Development on 13 September 2019, and it provides strategies, objectives and development guidelines for the assessment of Development Applications (DA) and complements the provisions of the WLEP 2012.

28. The Parties have advised, and I am satisfied, that, based on the advice and agreements of their expert town planners, Mr Nigel Dickson (for the Applicant) and Mr Matthew O’Donnell (for the Respondent) the Proposed Development, subject to the Parties’ proposed conditions of consent, is compliant with all relevant controls within WDCP, or where it is not compliant, it represents a reasonable alternative solution that satisfies the objectives of those controls, and so merits flexibility in the application of the controls, as required under the provisions of s 4.15(3A) of the EP&A Act (see above at [16]) as follows:

1. in relation to Part C4 of WDCP, which provides objectives and controls relating to high density residential developments, and which applies to developments that are subject to the provisions of SEPP65, the Proposed Development satisfies the objectives and controls of:

1. section 4.3 concerning excavation, compliance with which was of concern in relation to the submissions of Mr Shelley (see above at [4(1)]) at the commencement of the hearing;

1. section 4.4 concerning streetscape;

2. section 4.5 concerning building design and streetscape;

3. section 4.7 concerning vehicle access and parking;

4. section 4.9 concerning landscaping;

5. section 4.10 concerning views and view sharing, in relation to which the Parties advised that the view sharing principles established in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 had been applied;

6. section 4.11 concerning visual privacy and security;

2. the Proposed Development satisfies the objectives and controls of Part B1 of WDCP which provides objectives and controls relating to waste;

3. the Proposed Development satisfies the objectives and controls of Part B3 of WDCP which provides objectives and controls relating to landscaping and biodiversity, and specifically the provisions of section 3.2.2 concerning habitat corridors and recognised habitat;

4. the Proposed Development satisfies the objectives and controls of Part B6 of WDCP which provides objectives and controls relating to stormwater;

5. the Proposed Development satisfies the objectives and controls of Part B8 of WDCP which provides objectives and controls relating to transport.

29. The Respondent confirmed that the Applicant’s development application had been notified as required under the provisions of cl 77 of the EP&A Regulation, and Part 6 of the Waverley Community Development Participation and Consultation Plan 2019.

Contentions

30. As noted above at [1], the Applicant seeks consent for a four-storey residential flat building containing ten (10) units, six (6) of which will be affordable rental units, as defined under the provisions of SEPP ARH, and four (4) of which will be provided on an “at market” basis.

31. The contentions in the appeal concerned the visual bulk and scale of the Proposed Development as originally proposed, potential privacy impacts arising from certain aspects of the original design, and the public interest noting the content of objector submissions following notification of the Proposed Development.

32. The Parties agreed that these contentions, and certain additional matters related to the provision of information by the Applicant and conditions related to materials/finishes and landscaping, had been resolved through the joint reporting and recommendation of the Parties’ expert town planners (see above at [28]).

33. In particular the Parties noted that:

1. matters relating to the visual bulk and scale of the Proposed Development had been resolved through:

1. compliance of the Proposed Development with the HoB and FSR developments standards applicable to the Subject Site under cll 4.3 and 4.4 of WLEP, respectively;

2. amendments to the design of the frontage of the Proposed Development which was now compliant with relevant controls in Part C4 of WDCP which now provides for a transition in frontage alignment between the buildings adjoining the Subject Site, and which reflects the intent of the controls on a merits basis as there is no predominant frontage alignment in the street;

3. amendments to the side and rear setbacks of the Proposed Development which, in its amended form, was considered by the expert planners to be acceptable;

2. matters relating to visual privacy has been resolved through:

1. the location and design of windows, including the use of high level windows, on the northern façade of the Proposed Development;

2. the removal of certain fourth floor rear balconies, originally proposed;

3. amendments to the rooftop terrace including the provision of non-trafficable areas to ensure that opportunities for overviewing to properties to the north of the Subject Site were appropriately restricted;

4. the deletion of certain balconies to the southern side of the Proposed Development;

3. matters relating to the need for additional information which had been resolved through reports and an interim auditor’s statement in relation to potential contamination on the Subject Site (see above at [19]);

4. matters relating to conditions had been resolved including in relation to the protection of a significant tree in the vicinity of the south east corner of the Subject Site, and in relation to certain habitat corridor issues resolved through amended landscaping plans;

5. matters relating to public interest, including matters raised in objector submissions which had been considered in detail by the Parties on the basis of detailed assessment by the Parties’ expert town planners within their joint expert report which was tendered as evidence at the hearing.

Conclusion

34. I am satisfied that:

1. the Applicant’s development application has been properly made;

2. all contentions in this appeal had been resolved, and the resolution of the contentions is supported by, and reflected in, the Parties’ proposed conditions of consent;

3. the Court’s requirements concerning the notification of applications for final orders by consent have been satisfactorily addressed;

4. the concerns of the objectors to the Applicant’s Proposed Development, particularly in relation to potential geotechnical, privacy and view sharing impacts have been addressed;

5. the jurisdictional perquisites applicable in the appeal, including the provisions of s 4.15(1) of the EP&A Act, have been satisfied; and

6. approval of the Applicant’s development application is in the public interest.

35. Consequently, I conclude that the Applicant’s development application for the Proposed Development as amended, should be approved, subject to conditions.

Orders

36. The orders of the Court are:

1. By consent, the appeal is upheld.

2. The Applicant’s development application DA-301-2019 for demolition of an existing building and hard paved areas and construction of a four-storey residential flat building with a total of ten (10) units, including six (6) affordable housing units, basement car parking and associated landscaping at 81 Anglesea Street, Bondi is determined by the grant of consent, subject to the conditions annexed hereto at Annexure ‘A’.

3. The exhibits are returned, except for Exhibits A and 1.

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (476799, pdf)

**********

Decision last updated: 21 May 2021