Land and Environment Court New South Wales Medium Neutral Citation: Strykowski v Waverley Council [2020] NSWLEC 1334 Hearing dates: Conciliation conference on 13-14 July 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under condition A.1 of Annexure A. (2) The Applicant's written request dated July 2020 prepared by ABC Planning Pty Ltd pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) seeking a variation of the development standard for floor space ratio set out in clause 4.4A of the WLEP is upheld. (3) The appeal is upheld. (4) Development consent is granted to development application number DA-311/2019, lodged on 24 September 2019, for demolition of existing dwelling and construction of a dual occupancy with strata subdivision at 10 Kobada Road, Dover Heights in accordance with 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 Waverley Local Environmental Plan 2012 Texts Cited: Land and Environment Court, COVID-19 Pandemic Arrangements Policy, (July 2020) Waverley Development Control Plan 2012 Category: Principal judgment Parties: June Strykowski (Applicant) Waverley Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/366754 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-311/2019 (DA). The DA sought consent for the demolition of an existing detached dwelling, construction of a dual occupancy and associated strata subdivision (the proposal) at 10 Kobada Road, Dover Heights (the site) by Waverley Council (the Council). 2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 and 14 July 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard cl 4.6(3) of the Waverley Local Environmental Plan 2012 (WLEP) requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 7. Similarly, cl 4.6(4) of the WLEP requires the consent authority to be satisfied the applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 8. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 9. The parties and their experts agree the amended proposal now confirms the Floor Space Ratio (FSR) calculation and associated non-compliance with Council's FSR development standard. The amended proposed FSR of 0.74:1 represents a variation of 0.11:1 to the numerical standard of 0.63:1. The applicant has also provided amendments to a cl 4.6 written request seeking to justify this non-compliance. 10. I am satisfied the amended cl 4.6 written request prepared by ABC Planning dated July 2020 addresses earlier inadequacies and in its current form justifies non-compliance with the FSR development standard, also demonstrating the objectives, set out in cl 4.4 of the WLEP, have been met. These objectives deal with ensuring buildings are compatible with the bulk, scale, streetscape and desired future character of the locality. 11. Similarly, and consistent with cl 4.6(4) of the WLEP, I am satisfied the amended cl 4.6 written request adequately addresses the objectives of the R2 Low Density Residential zoning, providing for the housing needs of the community within a low density residential environment. 12. The amended proposal is sited entirely within a building envelope determined by the WLEP building height development standard and the primary building setback controls evident within the Waverley Development Control Plan 2012. As such, the objectives of the FSR standard are achieved notwithstanding non-compliance with the standard. Accepting the proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest. 13. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the FSR standard. 14. As required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under condition A.1 of Annexure A. 2. The Applicant's written request dated July 2020 prepared by ABC Planning Pty Ltd pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) seeking a variation of the development standard for floor space ratio set out in clause 4.4A of the WLEP is upheld. 3. The appeal is upheld. 4. Development consent is granted to development application number DA-311/2019, lodged on 24 September 2019, for demolition of existing dwelling and construction of a dual occupancy with strata subdivision at 10 Kobada Road, Dover Heights in accordance with the conditions in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (252055, 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: 29 July 2020