Taub v Waverley Council

[2022] NSWLEC 1735

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taub v Waverley Council [2022] NSWLEC 1735

Hearing dates:

Conciliation conference on 7 December 2022

Date of orders:

23 December 2022

Decision date:

23 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)      The appeal is upheld.

(2)     Development Consent be granted to Development Application No. DA-219/2021 for alterations and additions to a semi-detached dwelling, including new front car space at 68 Chaleyer Street, Rose Bay, also known as Lot 1 in Deposited Plan 514506, subject to the conditions at Annexure A.   

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.18, 8.2, 8.7
Environment Planning and Assessment Regulation 2000 cl 3, 55

Environment Planning and Assessment Regulation 2021, Sch 6 cl 3
Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.3, Ch 2

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

State Environmental Planning Policy No 55 – Remediation of Land

Waverley Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.4A, 5.10, 6.1, 6.4, 6.9

Texts Cited:

Waverley Community Participation Plan 2019

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Andrew Taub (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Ede (Solicitor)(Respondent)

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

File Number(s):

2022/225824

Publication restriction:

No

Judgment

1. COMMISSIONER: Steven Andrew Taub (the Applicant) has appealed the refusal by Waverley Council (the Respondent) of his Development Application number DA-219/2021, made with owner’s consent, seeking consent for alterations and additions to a semi-detached dwelling, including new front car space (the Proposed Development) at 68 Chaleyer Street, Rose Bay, also known as Lot 1 in Deposited Plan 514506 (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified by the Respondent:

1. on 22 June 2022 for a period of 14 days consistent with the provisions of Waverley Community Participation Plan 2019 in response to which ten submissions were received; and again

2. in relation to a review of the Respondent’s refusal of the application pursuant to ss 8.2 and 4.18 of the EP&A Act.

4. On 7 December 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site inspection had been undertaken prior to the conciliation conference as part of the proceedings, and one objector submission was taken during that view which identified concerns in relation to potential privacy and overlooking of the Proposed Development.

6. At the conciliation conference the Parties reached an 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 and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, SEPP R&H came into force, replacing the State Environmental Planning Policy No 55 – Remediation of Land;

2. section 4.6 of SEPP R&H provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated;

3. the Subject Site has historically been used for residential purposes, and there is no known history of contamination applicable to the Subject Site and I am satisfied that as required under the provisions of s 4.6 of SEPP R&H that the Subject Site is suitable for its intended continuing residential use;

2. in relation to the provisions of State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 a BASIX Certificate is not required as:

1. the proposed carport is ‘BASIX excluded development’ as defined under cl 3 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation); and

2. even if the Proposed Development was not excluded, the works involve an alteration and addition to a building with an estimated cost of $38,500.00, and thereby below the threshold requiring a BASIXC certificate under subcl 3(c) of EP&A Regulation;

3. in relation to the relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. chapter 2 of the SEPP B&C applies as the Subject Site is located within the Waverley local government area pursuant to s 2.3(1)(a) of the SEPP B&C but there is no tree removal or clearing required as part of the Proposed Development; and

4. in relation to the provisions of Waverley Local Environmental Plan 2015 (WLEP):

1. the Subject Site is located in the R2 Low Density Residential Zone under the provisions of cl 2.3 of WLEP, and the proposed alterations and additions are permissible within the R2 Zone;

2. the Proposed Development is consistent with the relevant aims of the WLEP;

3. in relation to the provisions of cl 4.3 of WLEP which prescribes the maximum building height for development on the Subject Site of 8.5m:

1. the Applicant does not propose to increase the existing height of the building; and

2. the Applicant does not propose any development to exceed the maximum permissible height of buildings on the Subject Site;

4. in relation to the provisions of cl 4.4 of WLEP which prescribes the maximum permissible floor space ratio (FSR) applicable to development on the Subject Site:

1. the Proposed Development results in a minor reduction to the gross floor area of development on the Subject Site;

2. the Proposed Development complies with the applicable FSR standard set out in cll 4.4 and 4.4A of WLEP;

5. for the purposes of cl 5.10 of WLEP, the Subject Site is not identified as a heritage item, nor is it in the vicinity of any heritage item, or located within a heritage conservation area;

6. in relation to the provisions of cl 6.1 of WLEP which provides that development consent is required for the carrying out of works described in the Table to that subclause on land shown on the Acid Sulfate Soils Map within WLEP:

1. whilst the Subject Site is identified as containing ‘Class 5 Acid Sulfate Soils’, the Applicant’s proposed works do not involve the disturbance of soils exceeding 1 tonne and are not likely to lower the water table;

2. the Proposed Development is compliant with the provisions of cl 6.1 of WLEP;

7. for the purposes of cl 6.4 of WLEP, the Subject Site is not identified as being located in an area of ‘biodiversity’ on the Terrestrial Biodiversity Map in WLEP;

8. for the purposes of cl 6.9 of WLEP, the Subject Site is not identified in light green, light pink, brown or orange on the Key Sites Map, nor does it involve development on a building that is, or will be, equal or greater than 15m in height;

5. in relation to the provisions of Waverley Development Control Plan 2012 (WDCP), the Parties have advised, and I agree, that the Applicant’s amended development application is satisfactory having regard to the provisions of the WDCP and the provisions of s 4.15(1)(a)(iii) of the EP&A Act;

6. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [5]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant’s amended application.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s R2 Low Density Residential zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. 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.

13. The Court notes that:

1. pursuant to cl 55 of the former Environmental Planning and Assessment Regulation 2000, the provisions of which are saved with respect to the determination of the Applicant’s application in this appeal, the Respondent agreed to the Applicant amending its application;

2. pursuant to cl 3(2) of Sch 6 of the Environmental Planning and Assessment Regulation 2021, the Revised Drawings do not need to be uploaded to the NSW Planning Portal;

3. notwithstanding the point above (at [(2)]), the Applicant confirms the Revised Drawings were uploaded to the NSW Planning Portal on 5 December 2022;

4. the Applicant was granted leave to rely on revised plans in the proceedings.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development Consent be granted to Development Application No. DA-219/2021 for alterations and additions to a semi-detached dwelling, including new front car space at 68 Chaleyer Street, Rose Bay, also known as Lot 1 in Deposited Plan 514506, subject to the conditions at Annexure A.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 23 December 2022