Wainidiva Pty Ltd v Waverley Council (No 2)

[2021] NSWLEC 1692

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wainidiva Pty Ltd v Waverley Council (No 2) [2021] NSWLEC 1692

Hearing dates:

17 and 18 May 2021

Date of orders:

29 November 2021

Decision date:

29 November 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders: see [6].

Catchwords:

DEVELOPMENT APPLICATION – boarding house – whether Applicant’s written request to vary height of buildings development standard is well founded – whether existing dwellings are contributory items – whether existing dwellings can be demolished – whether proposed development is compatible with the character of the local area – whether proposed development is compatible with character of heritage conservation area – whether design of boarding house is acceptable

Legislation Cited:

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Cases Cited:

Waindiva Pty Ltd v Waverley Council [2021] NSWLEC 1615

Category:

Principal judgment

Parties:

Wainidiva Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Wright (Applicant)
M Staunton (Respondent)

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

File Number(s):

2020/43146

Publication restriction:

No

Judgment

1. COMMISSIONER: In a judgment given on 15 October 2021, Waindiva Pty Ltd v Waverley Council [2021] NSWLEC 1615, I handed down my decision on the appeal by Waindiva Pty Ltd against the refusal by the Waverly Council of its development application no. DA-426/2019.

2. That application sought consent for the demolition of three dwellings and the construction of a boarding house containing 37 rooms with a basement containing 10 at grade parking spaces, 8 parking platforms in a stacker and a space for a small garbage collection vehicle to facilitate its loading and unloading.

3. At [95] in my judgment of 15 October 2021:

1. the Applicant was directed to amend its plans reflecting the conclusions of the judgment at [92], by no later than Friday 22 October 2021;

2. relying on the provisions of s 39(2) of the Land and Environment Court Act 1979, the Court exercised the function of Waverley Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to agree to the Applicant further amending its development application DA-426/2019, as tendered into evidence at the hearing, to reflect direction made above (at direction (1));

3. the Parties were directed as follows:

1. the Respondent, Waverley Council, as the relevant consent authority, was to lodge the amendment of the development application on the NSW planning portal within 10 days of the date of the direction in the judgment and was to notify the Applicant after it had been lodged;

2. the Applicant was to file with the Court a copy of the amended development application within 2 days after the Respondent had notified the Applicant that the amendment had been lodged on the NSW planning portal;

3. the Parties were to agree and file with the Court final conditions of consent, by no later than 3pm on Friday 29 October 2021, reflecting the conclusions in the Court’s judgment.

4. The Parties have now complied with those directions and have agreed and filed settled conditions of consent reflecting the conclusions in the Court’s judgment.

5. As the Parties’ agreed conditions of consent have now been filed, the Court is able to make final orders.

Orders

6. The Court orders:

1. The Applicant is granted leave to rely on amended plans;

2. The Applicant is pay the Respondent’s costs thrown away, as agreed or assessed, pursuant to s 8.15(3) of the EP&A Act;

3. The Applicant’s written request to vary the height of buildings development standard in cl 4.3 of Waverley Local Environmental Plan is upheld;

4. The appeal is upheld;

5. Development Application DA-426/2019 seeking demolition of existing structures, construction of a three storey boarding house with 37 rooms, including a manager’s room, in three wings at 22, 24 and 26 Edward Street, Bondi, is determined by way of approval, subject to the conditions at Annexure ‘A’ to this judgment;

6. The exhibits are returned, with the exception of Exhibits A, C and 1.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (461858, pdf)

Architectural Plans (39626284, pdf)

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Amendments

13 December 2021 - Pursuant to UCPR r 36.17 and with the consent of all parties, amend Annexure A to the judgment of 29 November 2021 by: Updating party names in header, Amending the “date from which consent takes effect”, Updating condition 1(b) to correct the revisions for the landscape plans, Updating condition 1(i) to correct the date the report was received by Council, and Deleting a random fullstop from 2(a).

Decision last updated: 13 December 2021