Southern Freeholds Pty Ltd v Waverley Council

[2024] NSWLEC 1218

Land and Environment Court

New South Wales

Medium Neutral Citation:

Southern Freeholds Pty Ltd v Waverley Council [2024] NSWLEC 1218

Hearing dates:

Conciliation conference on 19 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $10,100 within 28 days of these orders.

(2) The Applicant’s written request, prepared by LK Planning dated 7 December 2023, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the maximum building height development standard in cl 4.3 of the Waverley Local Environmental Plan 2012, is upheld.

(3) The Applicant’s written request, prepared by LK Planning dated 7 December 2023, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the maximum floor space ratio development standard in cl 4.4 of the Waverley Local Environmental Plan 2012, is upheld.

(4) The appeal is upheld.

(5) Development Application No. DA-210/2023, as amended, for the demolition of the rear of the existing building and the construction of a new four storey rear addition and basement parking level, four retail tenancies on the ground floor and five residential units above at 99-101 Hall Street, Bondi Beach, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop top housing – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 37, 38

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

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

State Environmental Planning Policy (Housing) 2021, ch 4, ss 144, 147, sch 7A, s 8, sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 6.2, 6.9, 6.10, 6.15, 6.16

Texts Cited:

Apartment Design Guide, Pts 3, 4

Category:

Principal judgment

Parties:

Southern Freeholds Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2023/329952

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application no. 210/2023 for demolition of the rear of the existing building and construction of a four storey rear addition shop top housing development with ground floor retail and basement parking (DA) at 99-101 Hall Street, Bondi Beach legally known as Lots 1 and 2 in DP 228356 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 April 2024. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA-210/2023 in accordance with the documents listed at [29] (amended DA). 

4. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the Class 1 appeal. The DA was lodged to the Respondent on 4 August 2023. The Respondent notified the development application between 23 August 2023 to 20 September 2023. One submission of support was received, which has been considered by the Respondent.

Waverley Local Environmental Plan 2012 (WLEP)

10. The site is zoned E1 Local Centre under the WLEP. The proposed development for shop top housing is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

11. Clause 4.3 height of buildings applies to the site, with a maximum height of 13m. The amended DA is 13.59m at its highest point and seeks an exception pursuant to cl 4.6. With consideration of the revised cl 4.6 written request prepared by LK Planning dated 7 December 2023 in relation to height (height written request), the parties agree and I accept that the height written request satisfies the provisions of cl 4.6 to contravene cl 4.3.

12. Clause 4.4 floor space ratio (FSR) applies to the site, with a maximum FSR of 2:1. The amended DA proposes an FSR of 2.24:1 and seeks an exception pursuant to cl 4.6. With consideration of the revised cl 4.6 written request prepared by LK Planning dated 7 December 2023 in relation to FSR (FSR written request) and the planning agreement letter of offer dated 7 December 2023, the parties agree and I accept that the written request satisfies the provisions of cl 4.6 to contravene cl 4.4.

13. I note that irrespective of the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023, due to the lodgement date of the amended DA, the former version of cl 4.6 applies.

14. Clause 5.10 heritage conservation applies as the site is located opposite a locally listed heritage item. With consideration of the Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated June 2023, I accept the parties’ agreement that the provisions have been considered.

15. Clause 6.2 earthworks applies to the amended DA. On the basis of the Preliminary Geotechnical Investigation prepared by EI Australia dated 17 August 2021, I accept the parties’ agreement that the provisions have been considered.

16. Clause 6.9 design excellence does not apply due to the proposed height of the amended DA not meeting the threshold. Notwithstanding, I note that the agreed submissions detail that the DA was considered by the Waverley Design Excellence Advisory Panel.

17. Clause 6.10 waste minimisation and recycling applies to the amended DA. I accept that parties’ agreed submissions, supported by the Operational Waste Management Plan prepared by Elephants Foot dated 6 July 2023, that the amended DA satisfies the clause.

18. Clause 6.15 stormwater management applies to the amended DA. As set out in the parties’ agreed submissions and supported by the Stormwater Management OSD Calculation and WSUD Report, Stormwater Response to Contentions and Amended Stormwater Plans all prepared by Integrated Group Services and dated 1 November 2023, I accept that the provisions have been met.

19. Clause 6.16 development in Zone E1 applies to the site. I accept the parties’ agreed submissions and discussion within the height and FSR written requests that the provisions in relation to amenity, desired future character and hierarchy of centres have been considered.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

20. Chapter 4 of the Housing SEPP applies to the amended DA in accordance with Sch 7A, s 8 (2A) and s 144. Section 147 requires consideration of the design principles contained in Sch 9, the Apartment Design Guide (ADG) and advice received from a design review panel.

21. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 ADG.

22. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the SEPP 65 Design Statement completed by the nominated qualified designers John Pradel and Adam Haddow (registered architect numbers 7004 and 7188) dated 6 December 2023. I note that the DA was considered by the Waverley Design Excellence Advisory Panel.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

23. The provisions of s 4.6 of SEPP RH apply to the site. The amended DA is accompanied by a Detailed Site Investigation report prepared by EI Australia dated 29 June 2023 which states that the contamination found on site was well below the investigation levels for residential use and that the site can be made suitable for the proposed development subject to recommendations. These recommendations have been included in the conditions of consent at Annexure A. I note that a remedial action plan was not recommended. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been satisfied.

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

24. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

25. The parties agree and I accept that the changes made to the DA do not necessitate an amended BASIX Certificate in accordance with s 37(5) of the EPA Reg. I accept that the originally submitted Basix Certificate, number 1402185M, satisfies the provisions of SEPP BASIX.

Conclusion

26. 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.

27. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

28. 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.

29. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38 of the EPA Reg to the Applicant amending DA-210/2023 to rely upon the following amended plans and documents:

TAB	DOCUMENT	DATE
1.	Amended Clause 4.6 Variation for FSR prepared by LK Planning	7 December 2023
2.	Amended Clause 4.6 Variation for Height prepared by LK Planning	7 December 2023
3.	Letter of Offer	7 December 2023
4.	Design Verification Statement prepared by SJB Architecture Pty Ltd	6 December 2023
5.	Amended Traffic and Transport Management Report prepared by Terraffic Pty Ltd	7 December 2023
6.	Amended Noise Impact Assessment prepared by PWNA	6 December 2023
7.	Erosion and Sediment Control Plan prepared by Integrated Group Services	1 November 2023
8.	Stormwater Management OSD Calculation and WSUD Report prepared by Integrated Group Services	1 November 2023
9.	Stormwater Response to Contentions prepared by Integrated Group Services	1 November 2023
10.	Amended Stormwater Plans prepared by Integrated Group Services • SW000 – Cover Sheet (Rev 02) • SW100 – Basement (Rev 02) • SW101 – Ground (Rev 02) • SW102 – Level 1 (Rev 02) • SW103 – Level 2 (Rev 02) • SW103 – Level 2 (Rev 02) • SW105 – Roof (Rev 02) • SW200 – Catchment Plan (Rev 02) • SW201 – OSD Detail (Rev 02) • SW202 – Basement Pump-out Pit Details (Rev 02) • SW203 – Kerb Inlet Pit Typical Detail (Rev 02)	1 November 2023
11.	Amended Architectural Plans prepared by SJB Architecture Pty Ltd • A-0001 – Cover (Rev 6) • A-0101 – Site Plan (Rev 5) • A-0102 – Site Analysis (Rev 3) • A-0201 – Existing Floor Plan – Ground (Rev 4) • A-0202 – Existing Floor Plan – Level 1 (Rev 5) • A-0211 – Existing Elevations (Rev 5) • A-0301 – Demolition Plan (Rev 5) • A-2501 – Photomontage (Rev 4) • A-1001 – Floor Plan – B1 (Rev 9) • A-1002 – Floor Plan – Ground (Rev 9) • A-1003 – Floor Plan – Level 1 (Rev 8) • A-1004 – Floor Plan – Level 2 (Rev 8) • A-1005 – Floor Plan – Level 3 (Rev 8) • A-1006 – Floor Plan – Roof (Rev 7) • A-1401 – Elevations Sheet 1 (Rev 10) – 25 January 2024 • A-1501 – Sections Sheet 1 (Rev 12) – 25 January 2024 • A-1502 – Sections Sheet 2 (Rev 3) – 25 January 2024 • A-4001 – Apartment Plan _APT 1.02 (Rev 2) • A-4002 – Apartment Plan _ APT 1.01 (Rev 2) • A-4003 – Apartment Plan _ APT 2.02 (Rev 2) • A-4004 – Apartment Plan _ APT 2.01 (Rev 2) • A-4005 – Apartment Plan _ APT 3.01 (Rev 2) • A-6001 – Views from the Sun (Rev 6) • A-6011 – Height Plane Diagrams (Rev 6) • A-6021 – Shadow Analysis Sheet 1 (Rev 5) • A-6022 – Shadow Analysis Sheet 2 (Rev 5) • A-6031– Ventilation Analysis (Rev 4) • A-6032 – Solar Analysis (Rev 4) • A-6033 – Landscape Plan (Rev 5) • A-6101– GFA Plan (Rev 5) • A-6601 – Finishes Board (Rev 5)	6 December 2023 and 25 January 2024

Orders:

30. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $10,100 within 28 days of these orders.

2. The Applicant’s written request, prepared by LK Planning dated 7 December 2023, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the maximum building height development standard in cl 4.3 of the Waverley Local Environmental Plan 2012, is upheld.

3. The Applicant’s written request, prepared by LK Planning dated 7 December 2023, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the maximum floor space ratio development standard in cl 4.4 of the Waverley Local Environmental Plan 2012, is upheld.

4. The appeal is upheld.

5. Development Application No. DA-210/2023, as amended, for the demolition of the rear of the existing building and the construction of a new four storey rear addition and basement parking level, four retail tenancies on the ground floor and five residential units above at 99-101 Hall Street, Bondi Beach, is determined by the grant of consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

329952.23 Annexure A 

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Decision last updated: 29 April 2024