TLB Trading Pty Ltd v Waverley Council

[2019] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:	TLB Trading Pty Ltd v Waverley Council [2019] NSWLEC 1557
Hearing dates:	Conciliation conference on 20 September 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – amended design – 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 Waverley Local Environmental Plan 2012
Cases Cited:	Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Category:	Principal judgment
Parties:	TLB Trading Pty Ltd Applicant) Waverley Council (Respondent)
Representation:	Counsel: G Hartley (Solicitor) (Applicant) M Hanna (Solicitor) (Respondent)   Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/315532
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the deemed refusal of its development application DA-286/2018. The application seeks approval for the demolition of the existing residential flat building, the construction of a new residential flat building and strata subdivision. The development is proposed at 10 Marne Street, Vaucluse (Lot 22 in DP 19254).

2. 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.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 27 May 2019. By consent, a further conciliation conference was held on 20 September 2019. I presided over both conciliation conferences. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The parties are in agreement that the subject site benefits from existing use rights (pursuant to s 4.65 of the EPA Act) for the purpose of a residential flat building. The Statement of Environmental Effects accompanying the Development Application includes a report documenting the historical use of the site for the purposes of a residential flat building. There is no contention between the parties that the use has been abandoned (s 4.66(3) of the EPA Act).

2. Pursuant to cl 41(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), the development application proposes the existing use is to be rebuilt.

3. The application has been assessed in a manner consistent with the decision of the Court in Saffioti v Kiama Municipal Council [2019] NSWLEC 57. It is accompanied by two written requests which seek to justify a variation to development standards in the Waverley Local Environmental Plan 2012 (WLEP), height and floor space respectively.

4. I am satisfied that consent should be granted notwithstanding the contravention of the height standard at cl 4.3 of WLEP. The development standard establishes a maximum height of 8.5m. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of WLEP. The amended development application has a maximum height of approximately 9.55m.

5. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by James Lovell and Associates. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of WLEP).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met.

4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met.

5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

6. Further, I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (FSR) standard at cl 4.4 of WLEP. The development standard establishes a maximum FSR of 0.5:1. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of WLEP. The amended development application has a maximum FSR of 1.12:1.

7. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by James Lovell and Associates. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of WLEP).

3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met.

4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the FSR development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met.

5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR standard.

8. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I accept that the likelihood of contamination is low.

9. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 932453M_03 in compliance with the instrument.

10. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and the provisions of the Regulation. The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation.

11. The development is on land within the Coastal use area under State Environmental Planning Policy (Coastal Management) 2018. In determining the application, I have given consideration to the matters at cl 14 of the instrument.

12. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, 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 EPA Act.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. Leave is granted to the Applicant to rely upon:

1. the amended plans listed in Condition 1 at Annexure ‘A’;

2. the written request pursuant to clause 4.6 of Waverley Local Environmental Plan 2012 (“WLEP”) seeking to justify the contravention of the maximum building height development standard in clause 4.3 of WLEP prepared by James Lovell & Associates dated 20 September 2019;

3. the written request pursuant to clause 4.6 of WLEP seeking to justify the contravention of the maximum floor space ratio development standard in clause 4.4 of WLEP prepared by James Lovell & Associates dated 20 September 2019;

4. the amended BASIX certificate referred to in the conditions at Annexure ‘A”.

2. Pursuant to section 8.15(3) 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 the sum of $32,000.00 within 28 days of these orders.

3. The written request pursuant to clause 4.6 of WLEP seeking to justify the contravention of the maximum building height development standard in clause 4.3 of WLEP prepared by James Lovell & Associates dated 20 September 2019 is upheld.

4. The written request pursuant to clause 4.6 of WLEP seeking to justify the contravention of the maximum floor space ratio development standard in clause 4.4 of WLEP prepared by James Lovell & Associates dated 20 September 2019 is upheld.

5. The Appeal is upheld.

6. Development Application DA-286/2018 proposes the following:

1. Demolition of the existing residential flat building and garage structure;

2. Construction of a new three storey residential flat building containing;

3. Basement level for bins, storage and parking for 9 cars (including a visitor space);

4. 1 x 1 – bedroom apartment, 5 x 2 – bedroom apartment and 2 x 4 – bedroom apartment; and

5. Strata Subdivision into 8 Lots and common property at 10 Marne Street, Vaucluse is approved subject to the conditions in Annexure ‘A’.

……………………………

D M Dickson

Commissioner of the Court

Annexure A (248 KB)

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Decision last updated: 29 November 2019