Williamson v Northern Beaches Council

[2019] NSWLEC 1298

Land and Environment Court

New South Wales

Medium Neutral Citation:	Williamson v Northern Beaches Council [2019] NSWLEC 1298
Hearing dates:	Conciliation conference on 30 April 2019; 23 & 29 May 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1)   The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application as agreed or assessed. (3)   The Applicant’s written request pursuant to clause 4.6 of the Warringah Local Environmental Plan 2011 (“WLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of WLEP dated 10 May 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of WLEP. Consequently, the Applicant’s written request is well founded and is upheld. (4)   The appeal in respect of the property known as 727 Pittwater Road, Dee Why is upheld. (5)   Development application DA2018/1293 seeking alterations and additions to an existing commercial building and use as a boarding house is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Warringah Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Michael Williamson (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/281364
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Northern Beaches Council (Council) of Development Application No DA2018/1293. In exercising the functions of 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.

2. The development application relates to land identified as Lot 9 DP9125 at 727 Pittwater Road Dee Why (the site). It seeks consent for alterations and additions to an existing three storey mixed use building, including the construction of an additional storey and change of use to a boarding house. The application as originally submitted to Council on 6 August 2018 comprised twenty-six (26) boarding rooms including two (2) accessible rooms and a manager’s residence.

3. 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 April 2019, 23 & 29 May 2019. I presided over the conciliation conference.

4. As a result of the conciliation conference, the development application plans were amended, and after the conciliation conference, the parties reached agreement based on those amended plans as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The main changes between the plans as originally submitted and the plans that are the subject of the s34 agreement are the provision of a lift; increased open space and landscaping; internal reconfiguration of some units; relocation of the communal living spaces and the addition of a new adjacent communal open space, in the form of a terrace, at Level 3; a reduction in motorbike spaces from 10 to 5, and car parking spaces from 5 to 3, including a car share space and vehicle for the exclusive use of the occupants of the development. The total number of rooms reduces by one to a total of twenty-five (25) including 2 accessible rooms and manager’s residence. The mix of rooms changes from 20 double and 5 single rooms, to 15 double and 9 single rooms, with a commensurate decrease in the total number of occupants from 47 to 41, and a small reduction in floor space ratio.

6. The agreement reached between the parties involved the Court upholding the appeal and granting development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons also set out in [7] below.

7. The relevant jurisdictional matters are:

1. In relation to Warringah Local Environmental Plan 2011 (WLEP 2011), I am satisfied that the development works are for the purpose of a boarding house, which is a permissible use in the B4 Mixed Use zone and the development meets the objectives of the B4 Mixed Use zone one at cl 2.3 of WLEP 2011.

2. In relation to cll 4.3 and 4.6 of WLEP 2011, I have considered a written request made under cl 4.6 of the WLEP 2011 to vary the height development standard. The variation in height is from the maximum of 13 metres to a maximum of 14.21 metres. I am satisfied that the clause 4.6 variation request dated 10 May 2019 and lodged with the Court on 13 June 2019 has demonstrated that compliance with the development standard is unreasonable or unnecessary and has adequately addressed the matters required to be demonstrated as:

1. the proposal meets the objectives of the B4 Mixed Use zone,

2. the proposal meets the objectives of the height of buildings standard at cl 4.3 of WLEP 2011, and

3. there are sufficient environmental planning grounds to justify contravening the development standard.

3. The site is also subject to a planning proposal to amend the WLEP 2011 (the amending draft LEP). The amending draft LEP was exhibited in March 2018, and subsequently endorsed by Council at its meeting 25 September 2018. I am satisfied that the amending draft LEP is a matter for consideration under s 4.15(1)(a)(ii) of the EPA Act. Relevantly the draft amending LEP proposes to increase the maximum building height from 13 to 16 metres, and the proposed development is therefore consistent with the draft height of buildings development standard.

4. With respect to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)), I am satisfied the development reasonably satisfies the aims and relevant provisions of the SEPP (ARH), including its compatibility with the character of the area.

5. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. A Preliminary Site Investigation report submitted with the application indicates that the site is unlikely to have resulted in contamination, and the land does not require remediation.

6. In relation to cll 101 and 102 of State Environmental Planning Policy (Infrastructure) 2007, I am satisfied:

1. that based on the Assessment of Traffic and Parking Implications report submitted with the original application that safe vehicular access is provided by a road other than a classified road and the safety, efficiency and ongoing operation of the classified road (Pittwater Road) will not be adversely affected; and

2. that based on the DA Acoustic Assessment (which includes a Road Traffic Noise Intrusion assessment) as submitted with the original application, I am satisfied that, and the development includes measures to ameliorate potential traffic noise and vehicle emissions arising from proximity to the classified road.

7. The development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. An updated BASIX Certificate, dated 20 June 2019 has been provided.

8. 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.

9. The Court orders:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application as agreed or assessed.

3. The Applicant’s written request pursuant to clause 4.6 of the Warringah Local Environmental Plan 2011 (“WLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of WLEP dated 10 May 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of WLEP. Consequently, the Applicant’s written request is well founded and is upheld.

4. The appeal in respect of the property known as 727 Pittwater Road, Dee Why is upheld.

5. Development application DA2018/1293 seeking alterations and additions to an existing commercial building and use as a boarding house is approved subject to the conditions in Annexure A.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (270 KB, pdf)

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Decision last updated: 28 June 2019