Wright v Waverley Council

[2021] NSWLEC 1702

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wright v Waverley Council [2021] NSWLEC 1702

Hearing dates:

Conciliation conference on 12 November 2021

Date of orders:

23 November 2021

Decision date:

23 November 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See orders at [8]

Catchwords:

DEVELOPMENT APPLICATION: Demolition and construction two storey semi-detached dwelling, swimming tool and studio – amended plans – strata subdivision - conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 3

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Waverley Local Environmental Plan 2012, cll 2.7, 4.4A, 4.6

Texts Cited:

Managing Contaminated Land Planning Guidelines Department of Urban Affairs and Planning • Environment Protection Authority 1988

Waverley Community Development Participation and Consultation Plan

Category:

Principal judgment

Parties:

Helen Wright (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/224486

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the actual refusal by Waverley Council (the Respondent) of development application DA-165/2020. The development application seeks consent for demolition of existing structures, construction of a two-storey dual occupancy development and swimming pools with strata subdivision. The development is proposed at 84 Nancy Street, North Bondi (Lot 11 DP 19386).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 November 2021. I presided over the conciliation conference.

3. At the conciliation conference, an agreement, under s 34(3) of the Land and Environment Court Act (LEC Act), was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 November 2021.

4. On 20 October 2021, by notice of motion the Applicant amended the development application with the agreement of the Respondent as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (Regulation). The Court has been notified that the amended modification application has been lodged on the NSW planning portal. As such, the requirements of cl 55 of the Regulation are met.

5. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. Landowners consent was provided by the owner of the land at the time of the lodgement of the development application.

2. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I have given consideration to the potential contamination of the land. I accept the agreed submission of the parties that the proposed works do not include any change of use of the land and that the land has had a long history of residential use. The land is not within an investigation area; and development for a purpose referred to in Table 1 of the Managing Contaminated Land Planning Guidelines is not known to have been carried out on the land.

3. Consistent with cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted [1048176M_02].

4. The site is zoned R2 Low Density Residential under Waverley Local Environmental Plan 2012 (LEP 2012). The proposed development of a dual occupancy is permissible with consent in the zone. Demolition is permissible pursuant to cl 2.7 of LEP 2012.

5. Pursuant to cl 4.4A of LEP 2012, the maximum permissible floor space ratio (FSR) on the site is 0.5:1 as the area of the site is 562m². The development has an FSR of 0.6:1 and proposes a variation to the standard of 20% of 56.23m². The applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Darren Laybutt of GAT and Associates filed on 17 November 2021. This request accords with the amended plans and seeks a variation to the FSR development standard. I reviewed the request and in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. 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 (subcl 4.6(3)(a) of LEP 2012);

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (subcl 4.6(3)(b) of LEP 2012);

3. On the preceding basis, I am satisfied that the requirements of subcl 4.6(4)(a)(i) of LEP 2012 are met; and

4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the FSR development standard. On this basis, I am satisfied that the requirements of subcl 4.6(4)(a)(ii) of LEP 2012 are met;

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR standard.

7. Pursuant to subcl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

8. The original application was notified in accordance with requirements of the Waverley Community Development Participation and Consultation Plan and the submissions have been considered in the determination of the application.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties’ agreement under s 34(3) of the Court are:

1. The written request made pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 to justify the contravention of the floor space ration development standard in cl 4.4A of LEP 2012 prepared by Darren Laybutt and dated filed on 17 November 2021 is upheld.

2. The appeal is upheld.

3. Development application DA-165/2020 for demolition of existing structures; construction of a two-storey dual occupancy development and swimming pools; and strata title subdivision at 84 Nancy Street, North Bondi is approved subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (349502, pdf)

Amendments

30 November 2021 - Amended typographical error in file number.

Decision last updated: 30 November 2021