Wheeler v Waverley Council

[2023] NSWLEC 1626

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wheeler v Waverley Council [2023] NSWLEC 1626

Hearing dates:

Conciliation conference on 18 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-375/2022 for alterations and additions to the existing dwelling including second floor addition and balconies at 32 Gardyne Street, Bronte, being the Lot Y2 DP 411914, subject to conditions annexed here to and marked ‘Annexure A’.

Catchwords:

APPEAL – development application for alterations and additions to an existing dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Land and Environment Court Act 1979, ss 34, 34AA

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6

Category:

Principal judgment

Parties:

Charles Wheeler (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/120506

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to the existing dwelling, including a second floor addition, at 32 Gardyne Street, Bronte. The development application was refused by the respondent on 22 February 2023. The applicant 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. 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 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). The conciliation conference commenced on 18 October 2023. 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 would be acceptable to the parties. The agreement was submitted on the same date. The agreement 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 (EPA Regulation 2021). The amendment to the development application was to relocate stair 3 down the central hallway, to move the ridge of the upper addition towards the south of the site, to create a sloped roof form to the north and reposition bulk of that addition towards the centre of the existing roof form, and provide a planter box for screening on the upper terrace. The amendment also included the provision of updated written requests concerning the height and floor space ratio development standards.

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 a Jurisdictional Statement that sets out the matters that I am required to consider pursuant to s 4.15 of the EPA Act. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in the signed agreement. 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:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the WLEP 2012. The proposed maximum height of 10.35m represents a contravention of 1.85m above the numerical standard. However, the contravention is confined to three elements of the built form – the balustrade for the upper terrace, the privacy screen for that same terrace, and part of the roof line of the upper addition. I am satisfied that:

1. The written request dated 18 October 2023, 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 relating to the balustrade and the privacy screen results from the existing basement excavation. If the existing basement excavation was excluded and the height of the building was measured from the original ground level, the proposed balustrade and privacy screen would comply with the 8.5m height development standard. Those elements are in fact lower in height (but have a greater height breach) than the breach of the roof, which is a breach of only 358mm and results from placing the height addition in the centre of the built form to avoid impacts on the amenity of the adjoining properties. The roof breach is therefore justified by that environmental planning ground.

2. 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, and as there is no impact caused by the breach of the standard.

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• 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 1.5:1, pursuant to cl 4.4 of the WLEP. The proposed development has a FSR of 1.525:1, which represents a breach of the maximum FSR by 4.92%, with additional floor space of 14.31m² which accounts for the whole of the floor space added by the proposed development. In accordance with cl 4.6(4)(a) of the WLEP, I am satisfied that:

4. The written request dated 18 October 2023, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR by demonstrating that it facilitates the alteration of the existing dwelling to provide for an appropriately sized study in a pitched roof form utilising part of an existing built form, as well as providing a more functional layout of the living areas.

5. 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, and as there is no impact caused by the breach of the standard.

6. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 22 August 2023.

• 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 residential purposes and the proposed development does not seek to alter the existing ground or sub-surface, the site is unlikely to be contaminated and is suitable for the proposed development.

• The development application was notified on 19 September 2022 for 14 days, and three 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:

1. That the Respondent, Waverley Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-375/2022 in accordance with the documents listed below:

No.	Document	Date	Date received by Council
1.	Schedule of Amendments prepared by Corben Architects	30 August 2023	31/08/2023
2.	Amended Architectural Plans prepared by Corben Architects	22 August 2023	31/08/2023
3.	Amended Clause 4.6 height prepared by Minto Planning Services Pty Ltd	18 October 2023	18/10/2023
4.	Amended Clause 4.6 floor space ratio prepared by Minto Planning Services Pty Ltd	18 October 2023	18/10/2023
5.	Amended BASIX Certificate prepared by Corben Architects	22 August 2023	31/08/2023
6.	Addendum to Statement of Environmental Effects	20 September 2023	31/08/2023

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-375/2022 for alterations and additions to the existing dwelling including second floor addition and balconies at 32 Gardyne Street, Bronte, being the Lot Y2 DP 411914, subject to conditions annexed here to and marked ‘Annexure A’.

J Gray

Commissioner of the Court

Annexure A 

**********

Amendments

27 February 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), a date referred to in Condition 1(d) of Annexure A is corrected.

Decision last updated: 27 February 2024