Weinberg v Waverley Council

[2020] NSWLEC 1460

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Weinberg v Waverley Council [2020] NSWLEC 1460

Hearing dates:

Conciliation conference on 24 September 2020

Date of orders:

29 September 2020 and amended on 12 October 2020

Decision date:

29 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following:

(a) Architectural Plans by Wayne Black and Associates Pty. Ltd. – ARCHITECTS, Job No. 294(B), Sheets 1 7, sheets 1 and 4 dated 3 September 2020, sheets 2, 3 and 5 dated 15 September 2020, and sheets 6 and 7 dated 2 September 2020;

(b) Landscape Plan dated 3 September 2020

(c) Stormwater Discharge Plan by Zimmerman Engineers, Project No. 2563, Dwg 1 Rev D, dated 21 September 2020;

(d) BASIX certificate dated 21 August 2020; and

(e) Site Waste & Recycling Management Plan dated 22 January 2019.

(2) The appeal is upheld.

(3) Development application DA-427/2019 seeking the consent for alterations and additions to the existing dwelling located at the rear of the site and strata subdivision at 3 Gilgandra Road, North Bondi is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy – alterations and additions to one of the dwellings – conciliation conference – agreement reached

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

Waverley Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Mark Weinberg (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/162654

Publication restriction:

Nil

Judgment

1. COMMISSIONER: An existing detached dual occupancy is located at 3 Gilgandra Road, North Bondi. It comprises a two-storey dwelling at the front, and a two-storey building at the rear of the site, containing ground floor garages and a dwelling above. The dwelling at the rear of the site was constructed pursuant to a development consent granted on 10 December 1991 (DA 227/91). That consent authorised alterations and additions to an existing garage by the addition of a second storey, and the conversion for use of the site as a dual occupancy. This appeal concerns a development application made by Mr Weinburg for alterations and additions to the building at the rear of the site, and the strata subdivision of the site into two lots. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The development application proposes the conversion of the ground floor of the rear building from garages into living areas, an extension of the first floor to provide additional bedrooms, the construction of an outdoor courtyard area and the construction of two car parking spaces with one for each dwelling. No work is proposed to the existing two-storey dwelling located at the front of the site.

3. Waverley Council (“the Council”) refused the development application on 4 May 2020. Mr Weinburg appeals against that decision 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.

4. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). I presided over the conciliation conference, which commenced on 24 September 2020.

5. 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of a deferred commencement consent pursuant to s 4.16(1) of the EPA Act. The deferred commencement conditions require, inter alia, a reduction in the height of the building, additional landscaping, a structural report concerning the retention of the existing southern and western walls, additional fencing, and the amalgamation of two of the proposed bedrooms such that the dwelling will comprise two bedrooms in total.

6. As the presiding Commissioner, I am satisfied that the decision to grant a deferred commencement 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:

• The development works are for the purposes of a dual occupancy, which is permissible with consent in the R2 Low Density Residential zone under the Waverley Local Environmental Plan 2012 (“WLEP 2012”), which is the zone in which the site is located.

• Pursuant to cl 4.3 of the WLEP 2012, a maximum height of building development standard of 8.5m applies to the site. Clause 4.4 of the WLEP 2012 prescribes a maximum floor space ratio (“FSR”) of 0.5:1. The proposed development complies with both these development standards.

• The development does not breach any other development standards in the WLEP 2012 or any other applicable environmental planning instrument.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given that the site has historically been used for residential purposes, the site is unlikely to be contaminated.

• The amended development application is supported by an updated BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• In exercising the functions of the consent authority, the Court has the power to impose the conditions of consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 4.16(3), this power extends to the imposition of deferred commencement conditions, which stipulate that the consent is not to operate until the applicant satisfies the consent authority as to the matters specified in those conditions.

7. I also note that, whilst a number of the resident objectors raised concerns with respect to the zero setback of the wall on the rear boundary, the zero setback was approved in the development consent granted on 10 December 1991 (DA 227/91). Further, the extent of the wall on the boundary that is one-storey will be removed, and satisfaction of the deferred commencement conditions will minimise the increased height of the two-storey wall. The deferred commencement conditions also require the installation of a timber fence along the rear boundary where the proposed courtyard is located, which will provide acoustic attenuation.

8. 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)).

9. 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.

10. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following:

1. Architectural Plans by Wayne Black and Associates Pty. Ltd. – ARCHITECTS, Job No. 294(B), Sheets 1‑7, sheets 1 and 4 dated 3 September 2020, sheets 2, 3 and 5 dated 15 September 2020, and sheets 6 and 7 dated 2 September 2020;

2. Landscape Plan dated 3 September 2020;

3. Stormwater Discharge Plan by Zimmerman Engineers, Project No. 2563, Dwg 1 Rev D, dated 21 September 2020;

4. BASIX certificate dated 21 August 2020; and

5. Site Waste & Recycling Management Plan dated 22 January 2019.

2. The appeal is upheld.

3. Development application DA-427/2019 seeking the consent for alterations and additions to the existing dwelling located at the rear of the site and strata subdivision at 3 Gilgandra Road, North Bondi is approved subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (245290, pdf)

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Amendments

29 September 2020 - Correction to cover sheet.

29 September 2020 - Correction to administrative error.

12 October 2020 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, at the request of the parties and on the Court’s motion, the Court orders that the reference to “WB Architecture” and “Wayne Black Architect” in (1)(a) and Annexure A of the orders made on 29 September 2020 be amended to now read “Wayne Black and Associates Pty. Ltd. – ARCHITECTS”.

Decision last updated: 12 October 2020