Spartalis v Waverley Council

[2022] NSWLEC 1643

Land and Environment Court

New South Wales

Medium Neutral Citation:

Spartalis v Waverley Council [2022] NSWLEC 1643

Hearing dates:

Conciliation conference 17 November 2022

Date of orders:

17 November 2022

Decision date:

17 November 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-7/2022 for demolition of the existing buildings and construction of a new two storey dwelling house with basement parking, swimming pool and new garage with studio at 129 Dover Road, Rose Bay, is determined by way of granting development consent, subject to conditions set out in Annexure B.

Catchwords:

APPEAL – development application – demolition of existing structures and the construction of a two-storey dwelling house with carport and studio at the rear – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

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

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

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

Category:

Principal judgment

Parties:

Sophie Spartalis (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/203518

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application lodged with Waverley Council on 11 January 2022 for the demolition of existing structures and the construction of a two-storey dwelling with a basement and a carport with studio above at 129 Dover Road, Rose Bay. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 17 November 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The signed agreement was subsequently filed the same date. The amendments made in the amended development application reduce the overall height of the dwelling, reduce the extent of the excavation, amend the rear building setback lines to match the recent approval at 135 Dover Road, increase the western side setback, retain the hedges along the eastern boundary, reduce the number of total car parking spaces, amend the form of the studio above the carport facing Beaumont Street, amend the basement access ramp and make other ancillary amendments. The parties agree that the proposed development now complies with the applicable development standards for height and floor space ratio.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed statement on the jurisdictional prerequisites that sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works, including the studio, are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone in which the site is located, pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• The proposed development complies with the height development standard in cl 4.3 of the WLEP and the floor space ratio development standard in cl 4.4 of the WLEP.

• Clause 6.2 of the WLEP concerns earthworks and applies to the site. The proposed development includes excavation for the proposed basement and swimming pool. Based on the agreed statement, the joint expert report of the town planners, and the Preliminary Geotechnical Assessment that accompanies the Class 1 Application, I have considered the matters listed at cl 6.2(3) of the WLEP. I note also that the agreed conditions of consent contain conditions that will avoid and minimise any impacts caused by excavation.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified between 24 January 2022 and 7 February 2022. Three submissions were received during that period, and an additional submission was received on notification of the appeal. I have considered the issues raised in those submissions.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Waverley Council as the relevant consent authority has agreed pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Development Application DA-7/2022 the subject of these proceedings, to rely on the documents specified in Annexure A.

2. The Applicant uploaded the amended application on the NSW Planning Portal on 17 November 2022.

3. The Applicant filed the amended application with the Court on 17 November 2022.

4. The Applicant has agreed to pay the Respondent's costs in the agreed sum of $2,000.00 within 28 days.

9. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-7/2022 for demolition of the existing buildings and construction of a new two storey dwelling house with basement parking, swimming pool and new garage with studio at 129 Dover Road, Rose Bay, is determined by way of granting development consent, subject to conditions set out in Annexure B.

……………………….

J Gray

Commissioner of the Court
(Annexure A) (124982, pdf)(Annexure B) (342761, pdf)

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Decision last updated: 17 November 2022