Land and Environment Court New South Wales Medium Neutral Citation: Tabachnik v Waverley Council [2020] NSWLEC 1231 Hearing dates: Conciliation conference on 22 May 2020 Date of orders: 28 May 2020 Decision date: 28 May 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [12] below 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 No 55— Remediation of Land Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Martin Tabachnik (Applicant) Waverley Council (Respondent) Representation: Counsel: G Green (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/355283 Publication restriction: No Judgment 1. COMMISSIONER: Martin Tabachnik (the Applicant) has appealed the decision of Waverley Council (the Respondent) to refuse his development application DA35/2019, for demolition of an existing dwelling and construction of an attached dual occupancy with basement garage, swimming pool and associated landscaping works, as well as strata subdivision (the proposed development) at 3 Lancaster Road, Dover Heights (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 22 May 2020 by teleconference, and I have presided over the conciliation conference. 5. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's modification application, subject to conditions. 6. 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. 7. 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 to be: 1. the Proposed Development, characterised as a dual occupancy, is permissible with consent on the Subject Site, and the Development Application was made with owner's consent. Further, a valid BASIX certificate for the proposed development dated 18 May 2020 has been provided by the Applicant; 2. the Proposed Development has a floor space ratio of 0.61:1, which exceeds the Floor Space Ratio (FSR) development standard applicable to the Subject Site which is 0.5:1 under the provisions of cll 4.4 and 4.4A of Waverley Local Environment Plan 2012 (WLEP). The Applicant has prepared a written request pursuant to the provisions of cl 4.6 of WLEP to vary the FSR development standard applicable to the Subject Site. The Respondent has said, and I agree, that the Applicant's written request is well founded, and it has demonstrated that: 1. compliance with the development standard is unreasonable or unnecessary because the Applicant has demonstrated that the objectives of the FSR development standard in cl 4.4 of WLEP are achieved notwithstanding the non-compliance; 2. there are sufficient environmental planning grounds to justify convening the development standard; and 3. the proposed development is in the public interest because it is consistent with the objectives of the FSR standard in cl 4.4 of WLEP, to which cl 4.4A refers and relates, and the objectives for development within the R2 zone in which the proposed development would be carried out. 1. The Applicant's development application has considered the matters within cl 6.2(3) of WLEP concerning earthworks, and the matters related to whether the Subject Site is contaminated as required under cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land. 1. The Parties have explained, and I accept, that the above jurisdictional prerequisites have been satisfied. 2. Having considered the advice of the Parties, provided above at [7] and [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act, have been so satisfied. 3. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. 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. 5. The Court orders: 1. The Applicant's clause 4.6 request in relation to the floor space ratio development standard pursuant to cl 4.4A of the Waverley Local Environmental Plan 2012 is well founded and upheld. 2. The appeal is upheld. 3. Development Application DA 35/2019 for demolition of existing dwelling and construction of an attached dual occupancy with basement garage, swimming pool, landscaping and strata subdivision at 3 Lancaster Road, Dover Heights is approved subject to the conditions at Annexure "A". …………………………….. M Chilcott Commissioner of the Court Annexure A (pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2020