The Owners - Strata Plan No. 1618 v Waverley Council

[2018] NSWLEC 1673

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners – Strata Plan No. 1618 v Waverley Council [2018] NSWLEC 1673
Hearing dates:	Conciliation conference on 17 December 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [29] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	The Owners – Strata Plan No. 1618 (Applicant) Waverley Council (Respondent)
Representation:	Counsel: C McEwen, SC (Applicant) M Staunton (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Sparke Helmore (Respondent)
File Number(s):	2017/356773
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by The Owners – Strata Plan No. 1618 (the Applicant) lodged under s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act). It is against the deemed refusal pursuant to s 8.11 of the EPA Act by Waverley Council (the Council) of development application DA-150/2017 (the application).

2. The application seeks consent under the EPA Act for alterations and additions to an existing 3 storey residential flat building (RFB) at 246-248 Campbell Parade, Bondi Beach (the site). The site also has a rear boundary to Ramsgate Avenue.

3. The RFB is a listed heritage item under the Waverley Local Environmental Plan 2012 (the WLEP) and is situated in the Bondi Beach Conservation Area.

4. The site is zoned R3 Medium Density Residential under the WLEP in which the development is permissible with consent.

5. The application the subject of the appeal initially proposed:

1. Demolition of an existing unit (Unit 3) to provide a new onsite car parking area with 23 resident parking spaces. This area was served by car stackers and turntables accessed from a new crossover in Ramsgate Avenue;

2. An additional (fourth) storey (referred to as Level 3) containing two x 3 bedroom units;

3. Partial infilling of the internal central courtyard with a new lift and stair, new waste storage room and bicycle parking;

4. External alterations to the building including new Juliette balconies to the side elevations, new windows, and sunhoods/awnings and a central spire/flagpole on the Campbell Parade frontage; and

5. Other works including reconfiguring the building’s pedestrian entry, internal reconfiguring of existing units, demolition of stairs, stairwells and internal unit walls, a new gate and fence to one courtyard, maintenance access to and solar panels on the roof, and landscaping.

6. The application was advertised and 8 objections were lodged raising concerns in terms of height and bulk, setbacks, impacts on views, on privacy, and on property and heritage values. Concern was also raised with the traffic and parking impacts in Ramsgate Avenue, in terms of increased use of the narrow street, limited parking availability, and the impacts of access to and from the car park reliant on car stackers and queuing in the street.

7. On 22 August 2017, the Council deferred consideration of the application raising concerns primarily in terms of floor space ratio (FSR), height and wall height non-compliances, inconsistency with the Campbell Parade streetscape, heritage impacts, and adverse view loss and privacy impacts to nearby properties.

8. In response to the filing of the appeal, the Council filed a Statement of Facts and Contentions (SFC) raising similar issues, but also concerns in terms of setbacks and separation, solar access, acoustics, parking and a lack of information.

9. On 3 May 2018, a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act) was held in relation to the matter, but was terminated as agreement could not be reached.

10. On 14 September 2018, the applicant was granted leave to rely on amended plans. In substance, these reduced the fourth storey to only one x 4 bedroom unit, increased side and front boundary setbacks at the fourth storey, and reinstated original parapets to the building.

11. The amended application was notified and 15 objections were received raising similar concerns to those raised with regard to the original application. The Council filed an Amended SFC in essence repeating the contentions in the original application.

12. The proceedings were listed for a hearing before me which commenced onsite on 26 November 2018 where the Court heard from a number of objectors who reiterated the concerns raised in their submissions. The primary concerns were the impacts of the proposed fourth storey (particularly on views) and associated with the proposed car park off Ramsgate Avenue.

13. Subsequently, the parties advised the Court that, on the basis of amendments proposed by the applicant to address Council and objector concerns, an agreement between the parties had been reached on a further amended application. The hearing was vacated and the matter was listed for a further s34 conference at which the parties filed an agreement.

14. I make no merit assessment of the amended application but note that the Council is of the view that the amended plans and documentation have adequately addressed the reasons for refusal of the original application and the contentions set out in the amended SFC and in issues raised by objectors. The agreement annexes a ‘Statement of Reasons’ (SoR) outlining the basis for the Council supporting the amended application.

15. The key changes which lead to the agreement were the removal of the fourth storey and parapets, enclosure of the central courtyard and existing stairwells to provide a central circulation core and additional internal floor space for the existing apartments at each level, and amended balconies which removed any substantive view loss to neighbours at the rear.

16. The SoR states that the view loss occasioned by the initially proposed fourth storey (or Level 3) was a fundamental issue in the proceedings, and of concern to the objectors, and the Council would not have entered into an agreement to approve the application without its removal.

17. The area of the car park was also reduced from 23 to 11 car spaces with the vehicle access, waiting bay and turntable located wholly within the boundaries of the site. The original proposal provided that vehicles entering or exiting the car stacker would be required to wait on Ramsgate Avenue. The SoR states that this was a fundamental issue in the proceedings and the Council would not have entered the agreement without the provision of the waiting bay within the boundaries of the site.

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

19. The jurisdictional pre-requisites of relevance to the proceedings were summarised by the parties in an annexure to the agreement and are addressed as follows.

20. As a residential flat building, the development is required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) under the provisions of the Environmental Planning and Assessment Regulation 2000 (the Regulations).

21. The applicant’s architect prepared a Design Verification statement referenced in the conditions of consent which meets the requirements under cll 50(1AB) and 143A of the Regulations. I am also satisfied that the requirements of cl 30 of SEPP 65 are met, in terms of the design quality of the development and the requirements of the Apartment Design Guide (ADG), and noting the comments of the Council’s Design Excellence Panel on the original application.

22. The development is also required to comply with the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The Court was advised that, upon receipt of the application, the Council undertook an assessment of the site having regard to its aerial mapping facility and site usage records. That assessment concluded that the site was unlikely to have been used for a potentially contaminating activity.

23. In reviewing the WLEP requirements relative to the Council’s contentions, I am satisfied that the jurisdictional tests under the WLEP are also satisfied by the application as amended.

24. In this regard, the development meets the objectives of the R3 zone at cl 2.3, the height of buildings at cl 4.3 and the earthworks provisions at cl 6.2. Having regard to the proposed and required heritage works to a listed heritage item situated within a conservation area, the application also meets the heritage conservation requirements at cl 5.10.

25. The amended proposal results in an overall reduction in the FSR from 2.68:1, as originally proposed, to 2.02:1. However, the FSR still exceeds the maximum permissible FSR of 0.9:1 specified under cl 4.4 of the WLEP. As a consequence, a written request was lodged as required under cl 4.6 of the WLEP to justify this non-compliance, and was attached to the agreement.

26. The cl 4.6 request to vary the FSR standard was accepted by the Council primarily as the additional floor space is now entirely within the existing building envelope.

27. I have reviewed the cl 4.6 request and agree that it meets the requirements of cl 4.6 providing sufficient environmental plans to support the FSR exceedence and that applying the standard is unreasonable and unnecessary in the circumstances. It demonstrates that development, as amended, meets the objectives of both the FSR standard and of the R3 zone.

28. In summary, the development now:

1. provides for restoration, including reinstatement of architectural features, to a heritage listed building situated in a conservation area;

2. has a public and private benefit in providing onsite parking for units within the building when none currently exists (and in an area adjoining the beach where on-street parking is at a premium). Further, the reduction of the proposed car park from 23 to 11 car spaces has enabled the provision of vehicle access, waiting bay and turntable to be located within the boundaries of the site;

3. has no unacceptable amenity impacts on neighbours, in terms of overshadowing, view impacts or privacy impacts, as the additional FSR is contained wholly within the existing building envelope. However, it provides additional amenity for occupants of the existing building in terms of enlarged units and provision of balconies;

4. is in keeping with all other RFBs in the surrounding street block which have FSRs which exceed, or significantly exceed, an FSR of 0.9:1; and

5. in terms of bulk and scale impacts, not only has minimal alteration to the existing building envelope and therefore minimal adverse external impacts, but will sit comfortably within the built form context of the locality and be compatible in character with the streetscape and the locality.

29. The Court orders that:

1. Leave is granted to the applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed.

3. The applicant’s written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (the WLEP) seeking to justify the breach of the maximum floor space ratio development standard pursuant to clause 4.4 of WLEP dated November 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of WLEP. Consequently, the applicant’s written request is well founded and is upheld.

4. The appeal in respect of the property (legally described as CP SP 1618) and known as 246-248 Campbell Parade, Bondi Beach, is upheld.

5. Development Application DA-150/2017 for the construction of alterations and additions to the existing residential flat building at 246-248 Campbell Parade, Bondi Beach is approved subject to the conditions at Annexure “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A

Decision last updated: 21 December 2018