Wainidiva Pty Limited v Waverley Council

[2024] NSWLEC 1544

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wainidiva Pty Limited v Waverley Council [2024] NSWLEC 1544

Hearing dates:

Conciliation conference on 30 August 2024

Date of orders:

05 September 2024

Decision date:

05 September 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application DA-170/2023 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $12,000 within 28 days.

(2) The appeal is upheld.

(3) Development Application DA-170/2023 for the Construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22-26 Edward Street, Bondi NSW 2026 is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

State Environmental Planning Policy (Housing) 2021, s 147, Ch 4, Sch 7A cl 8

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.14, 6.15

Category:

Principal judgment

Parties:

Wainidiva Pty Limited (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2023/283931

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22, 24 and 26 Edward Street, Bondi. The development application was lodged with the respondent on 21 May 2023. 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 arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 August 2024. 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. The agreement reflects the signed agreement that was filed on 22 August 2024 (and signed again on 30 August 2024 following some corrections), and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amended documents were filed on 30 August 2024 at the conciliation conference. The amendments reduce the height of the building by the reduction of height of roof elements, reduce the bulk of the building by increasing setbacks at the upper levels, and improve the streetscape presentation to make it more compatible with the heritage conservation area. The amendments also reduce overshadowing to adjoining neighbours and open view corridors from an adjacent building through the site.

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 Jurisdictional Prerequisites that sets out the jurisdictional prerequisites to the exercise of the power to approve a development application. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

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:

1. The proposed development is for the purpose of a residential flat building, which is permissible in the R3 Medium Density Residential zone in which the site is located, pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

2. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 9.5m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 10.57m represents a contravention of 1.07m above the numerical standard. The contravention is confined to the leading edge of level 3. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises from the topography of the site and the desire to achieve a building height that is compatible with the residential flat buildings on each side of the site. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

3. I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (FSR) development standard. The development standard establishes a maximum FSR of 0.6:1, pursuant to cl 4.4 of the WLEP. The proposed development has a FSR of 0.765:1, which represents a breach of the maximum FSR by 27.49%, with additional floor space of 248.82m². In accordance with cl 4.6(4)(a) of the WLEP, I am satisfied that:

1. The written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach. These grounds were not clearly outlined, but nonetheless demonstrate that the breach of the FSR allows the building to be of a four-storey scale, which achieves greater compatibility in the streetscape with the adjacent 8 and 5-storey residential flat buildings than what would be achieved with a FSR compliant building constrained to 3-storeys.

2. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance.

3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard.

4. The development is located in the vicinity of a heritage item and within the Imperial Avenue Heritage Conservation Area. The effect of the development on the heritage significance of the heritage conservation area has been considered, as required by cl 5.10(4) of the WLEP. A heritage impact assessment by Urbis dated 16 May 2023 accompanied the Class 1 Application, changes have been made to the streetscape presentation to better reflect characteristics of the heritage conservation area, and I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage item or the heritage conservation area.

5. Part of the site is mapped as containing Class 5 acid sulfate soils, and therefore cl 6.1 of the WLEP arises for consideration. However, as the subject works are not likely to lower the water table below 1m AHD on adjacent Class 1, 2, 3 or 4 land, no further assessment is required.

6. The development application includes earthworks for the provision of the basement level for car parking. Based on the geotechnical report by Alliance Geotechnical dated 8 November 2019, I have considered the matters set out in cl 6.2(3) of the WLEP.

7. Clause 6.14 of the WLEP concerns waste minimisation and recycling, and applies to the proposed development. Based on the operational waste management plan prepared by Elephants Foot dated 25 May 2023 and the updated bulky waste storage areas in the amended architectural plans, I am satisfied of the matters in cl 6.14(3).

8. Clause 6.15 of the WLEP concerns stormwater management and applies to the proposed development. Based on the civil plans by Adams Engineers dated 8 May 2023, I am satisfied of the matters in cl 6.15(3).

9. Consideration has been given as to whether the subject site is contaminated as required by s 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.

10. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to cl 8(2A) of Sch 7A. Based on the by design statement by Woods Bagot dated 1 May 2024, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.

11. The amended development application is accompanied by a statement of a qualified designer dated 1 May 2024 that verifies the design of the development, as required by cl 29 of the EPA Regulation 2021.

12. Consistent with the requirements of s 27 of EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 22 May 2024.

13. The development application was notified for a period of 21 days from 5 July 2023 to 27 July 2023. Four submissions were received. 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 the Respondent, Waverley Council, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-327/2022 to rely on the documents listed below:

Amended Architectural Plans prepared by Woods Bagot of Project No. 121330:

Plan Number and Revision	Plan description	Plan Date	Date received by Council
DA-0000 Ref F	Cover Sheet	08/05/2024	10/07/2024
DA-0301 Rev F	Area Schedules & BASIX Commitments	08/05/2024	10/07/2024
DA-1100 Rev. D	Site Plan	29/04/2024	10/07/2024
DA-1101 Rev. D	Site Analysis	29/04/2024	10/07/2024
DA-2200 Rev. E	Ground Floor Plan	08/05/2024	10/07/2024
DA-2201 Rev. D	Level 01 Plan	29/04/2024	10/07/2024
DA-2202 Rev. D	Level 02 Plan	29/04/2024	10/07/2024
DA-2203 Rev. D	Level 03 Plan	29/04/2024	10/07/2024
DA-2204 Rev. D	Roof Plan	29/04/2024	10/07/2024
DA-3201 Rev. D	Elevations – 01	29/04/2024	10/07/2024
DA-3202 Rev. D	Elevations – 02	29/04/2024	10/07/2024
DA-3221 Rev. D	Sections – 01	29/04/2024	10/07/2024
DA-3222 Rev. D	Sections – 02	29/04/2024	10/07/2024
DA-3223 Rev. D	Sections – 03	29/04/2024	10/07/2024
DA-9001 Rev. B	Materials Schedule	28/03/2024	10/07/2024

Supporting Documents

1. BASIX Certificate No 1382664M_02 prepared by Firstyle Homes Pty Limited and dated 22 May 2024 and NatHERs Certificate No J3N7PPBJUQ-01 prepared by Erbas and issued on 21 May 2024 and received by Council on 10/07/2024;

2. Geotechnical Investigation Report prepared by Alliance Geotechnical and Environmental Solutions, ref 9834-GR-1-4, dated 12/03/2024 and received by Council on 16/04/2024;

3. The Site Waste and Recycling Management Plan (SWRMP) Part 1 received by Council on 29/06/2024;

4. Clause 4.6 request for FSR prepared by GSA Planning dated May 2024;

5. Clause 4.6 request for height prepared by GSA Planning dated May 2024; and

6. Design Verification Statement prepared by Woods Bagot dated 1 May 2024.

9. The Court orders that:

1. The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application DA-170/2023 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $12,000 within 28 days.

2. The appeal is upheld.

3. Development Application DA-170/2023 for the Construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22-26 Edward Street, Bondi NSW 2026 is determined by the grant of consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

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Annexure A

Decision last updated: 05 September 2024