TC Three Pty Ltd ATF TC3 Trust v Waverley Council

[2020] NSWLEC 1620

Land and Environment Court

New South Wales

Medium Neutral Citation:

TC Three Pty Ltd ATF TC3 Trust v Waverley Council [2020] NSWLEC 1620

Hearing dates:

Conciliation conference on 12 October 2020, mentions on 16 and 23 November 2020

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See orders at [14]

Catchwords:

DEVELOPMENT APPLICATION – demolition of two boarding houses and one residential flat building – erection of a part three, part four storey residential flat building with basement parking – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

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

Waverley Local Environmental Plan 2012

Category:

Principal judgment

Parties:

TC Three Pty Ltd ATF TC3 Trust (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
C McEwen SC (Applicant)
M Staunton (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/230309

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Respondent of Development Application DA 187/2020 (development application) for the demolition of two boarding houses and one residential flat building and the erection of a new part three, part four storey residential flat building and basement parking at 278, 280 and 282 Birrell Street, Bondi (the site).

2. On 12 October 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act).

3. At, and shortly after, the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application and to grant development consent.

4. On 26 November 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle.

5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council’s remaining contentions.

6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The parties submitted a comprehensive statement as to jurisdiction matters which is annexure A hereto. I concur with the contents of that statement for the reasons expressed therein having regard to the documents which have been provided to the Court.

8. In particular, I note:

1. The proposed development is permissible in its zone – R3 Medium Density Residential – pursuant to Waverley Local Environmental Plan 2012 (WLEP 2012);

2. The proposed development exceeds the height control in cl 4.3 of WLEP 2012 and a clause 4.6 objection dated 29 October 2020 by Planning Ingenuity (CL 4.6 objection–height) has been provided. I am satisfied that the clause 4.6 objection-height adequately addresses the matters required to be demonstrated by cl 4.6(3) of WLEP 2012 and that the proposed development will be in the public interest because it is consistent with the objectives of the height control in cl 4.3 of WLEP 2012 and the objectives of the R3 zone, for the reasons set out in the cl 4.6 objection-height;

3. The proposed development exceeds the floor space ratio control in cl 4.4 of WLEP 2012 and a clause 4.6 objection dated 29 October 2020 by Planning Ingenuity (CL 4.6 objection–FSR) has been provided. I am satisfied that the clause 4.6 objection-FSR adequately addresses the matters required to be demonstrated by cl 4.6(3) of WLEP 2012 and that the proposed development will be in the public interest because it is consistent with the objectives of the floor space ratio control in cl 4.3 of WLEP 2012 and the objectives of the R3 zone, for the reasons set out in the cl 4.6 objection-FSR;

4. The provisions of cl 6.2 Earthworks of WLEP 2012 are addressed;

5. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development application because of the demolition of the two boarding houses. I am satisfied that provision has been made for an appropriate contribution for the loss of the existing affordable housing and that there is no provision in SEPP ARH which prevents the grant of development consent;

6. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development has been considered and a design verification statement has been provided;

7. A certificate pursuant to State Environmental Planning Policy (Building Sustainability Index : BASIX) 2004 has been provided.

9. The development application was placed on public notification for 21 days from 25 June 2020. The Respondent received 10 objections in response to the development application.

10. The Council’s Statement of Reasons for entering into the agreement pursuant to s 34 of the Court Act is Annexure B.

11. Having considered the material provided to the Court, and for the reasons expressed by the parties, 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 Court Act.

12. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

13. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 EP&A Act.

14. The Court orders:

1. The Applicant is granted leave to amend its development application to rely upon the plans identified in condition 1(a) of Annexure C;

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the EP&A Act in the agreed sum of $6,000.00 within 14 days.

3. The Appeal is upheld.

4. Development Application No. 187/2020 for the demolition of two boarding houses and one residential flat building and the erection of a new part three, part four storey residential flat building and basement parking at 278, 280 and 282 Birrell Street, Bondi is approved subject to the conditions in Annexure C.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (141752, pdf)

Annexure B (118771, pdf)

Annexure C (242785, pdf)

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Decision last updated: 10 December 2020