Land and Environment Court New South Wales Medium Neutral Citation: The Trustees for the Stephen Unit Trust trading as Stephen Davidson v Waverley Council [2021] NSWLEC 1375 Hearing dates: Conciliation conference on 20 May 2021, final agreement filed 20 May 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) Leave is granted to the Applicant to rely upon the revised BASIX certificate (number 1050308M_03) dated 20 May 2021 and the stamped BASIX plans annexed to this agreement at Annexure 'A'. (2) The appeal is upheld. (3) Consent is granted to Development Application DA-412/2019, as amended, for the demolition of all structures, remediation works and construction of a 10 storey mixed use development comprising basement level, 2 levels of commercial with residential apartments above and the upper level being a communal roof top terrace at 10 Denison Street, Bondi Junction (Lot 1 in DP846080) subject to the conditions at Annexure 'B'. Catchwords: DEVELOPMENT APPLICATION – mixed use – residential apartment building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 Waverley Local Environmental Plan 2012, cll 2.3, 5.10, 6.2, 6.5, 6.7, 6.9 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) NSW Apartment Design Guide 2015 Waverley Development Control Plan 2012 Category: Principal judgment Parties: The Trustee for the Stephen Unit Trust trading as Stephen Davidson (Applicant) Waverley Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/250670 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-412/2019 (DA) by Waverley Council (the Respondent). The DA sought consent for the demolition of all existing buildings, and the construction of an eleven storey mixed use building with basement at 10 Denison Street, Bondi Junction (the site). 2. Initially listed for a hearing over two days on 20 and 21 May 2021, at the conclusion of the site viewing on 20 May, and at the request of the parties, I approached the Chief Judge who agreed to reallocate the matter as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. 4. Leave was previously granted by the Court on 26 March 2021 and again on 18 May 2021 for the Applicant to amend the DA and to rely on amended plans. 5. At the most recent conciliation conference (20 May 2021), 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 the amended proposal subject to conditions. 6. Whilst the amended proposal remains largely consistent with the original DA, the final amendments included in the 18 May 2021 plans cumulatively work to resolve the contentions raised by the Respondent, which related primarily to site isolation, overdevelopment, built form and residential amenity, amongst other contentions. 7. In summary, the final amended proposal - in concert with agreed conditions of consent - reduces the proposed height by one storey, improves the built form relationship to both street frontages, enhancing its relationship with the immediate context, addresses the future development potential of the immediately adjacent site, and improves residential amenity for the benefit of both the subject site and its immediate neighbours. 8. 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. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard the parties agree, and I am satisfied, the Waverley Local Environmental Plan 2012 (WLEP) is the relevant environmental planning instrument. The site is zoned B4 Mixed Use, and the final amended proposal, characterised as a mixed use development, is permissible with consent. 11. I am satisfied the final amended proposal meets the B4 Zone objectives set out at cl 2.3 of the WLEP because it contributes to the integration of business, office and residential uses in an accessible location and thereby maximises public transport patronage, walking and cycling. The final amendments further improve the built form relationship to the scale of nearby Victorian terraces opposite on Denison Street. 12. I am satisfied the final amended proposal is consistent with all relevant development standards set out within the WLEP, specifically the maximum height of building and maximum floor space ratio. 13. The parties and their experts agree the subject site is not a heritage item but is located adjacent to the 'Mill Hill Conservation Area' identified at cl 5.10 of the WLEP. I am satisfied the final amended proposal has appropriately considered this heritage context and in responding with a two storey podium to Denison Street meets the objectives set out at cl 5.10(1) of the WLEP. 14. The parties agree, and I am satisfied, the final amended proposal has appropriately considered the matters set out in cl 6.2 of the WLEP relating to earthworks. The Applicant's geotechnical report identifies appropriate measures to minimise soil exposure and to control water flows. Additional conditions of consent have been imposed to ensure appropriate erosion and sediment control, to confirm appropriate methods of excavation and shoring, and ensure structural certification is provided prior to commencement of works. 15. The parties agree, and I am satisfied, the final amended proposal has appropriately considered the matters set out in cl 6.5 of the WLEP relating to active street frontage. The final amended proposal introduces retail uses to a significant extent of the available street frontage. 16. The parties agree, and I am satisfied, the final amended proposal has appropriately considered the matters set out in cl 6.7 of the WLEP relating to solar access to public spaces in Bondi Junction. The final amended proposal has been accompanied by detailed overshadowing diagrams, which illustrate the extent of overshadowing created by the final amended proposal meets the objectives of cl 6.7. 17. The parties agree, and I am satisfied, the final amended proposal has appropriately considered the matters set out in cl 6.9 of the WLEP relating to design excellence. The final amended proposal is well-designed, contextually responsive and exhibits design excellence when assessed against the matters set out at cl 6.9(4). 18. I am satisfied the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) is an additional relevant environmental planning instrument. The final amended proposal is accompanied by a Design Verification Statement prepared by the Applicant's architect as required pursuant to SEPP 65. I am satisfied the Design Verification Statement outlines how the final amended proposal meets the 9 design quality principles set out in SEPP 65. I am also satisfied the final amended proposal has appropriately responded to the various targets set out in the NSW Apartment Design Guide and thereby achieves an acceptable level of design quality. 19. I am satisfied the State Environmental Planning Policy No 55—Remediation of Land is an additional relevant environmental planning instrument. A Preliminary Site Investigation Report, Detailed Site Investigation Report and Remediation Action Plan accompany the final amended proposal. These documents conclude that the site can be made suitable for the proposed development. Conditions of consent require the works described in these reports to be carried out. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed. 20. The parties agree, and I am satisfied, a BASIX Certificate dated 20 May 2021 has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 21. I am satisfied that the original DA was made with the consent in writing of the owner of the site. 22. I am satisfied that the DA was publicly notified during its assessment. A total of 14 submissions were received by the Respondent, and the Court heard oral submissions from one concerned neighbour during the site viewing on 20 May 2021. 23. In accordance with s 4.15 of the EPA Act, I am satisfied that in considering and responding to submissions, the final amended proposal is in the public interest. The final amended proposal and agreed conditions of consent cumulatively serve to address and appropriately resolve a range of concerns. 24. Finally, in accordance with s 4.16(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent. 25. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. Leave is granted to the Applicant to rely upon the revised BASIX certificate (number 1050308M_03) dated 20 May 2021 and the stamped BASIX plans annexed to this agreement at Annexure 'A'. 2. The appeal is upheld. 3. Consent is granted to Development Application DA-412/2019, as amended, for the demolition of all structures, remediation works and construction of a 10 storey mixed use development comprising basement level, 2 levels of commercial with residential apartments above and the upper level being a communal roof top terrace at 10 Denison Street, Bondi Junction (Lot 1 in DP846080) subject to the conditions at Annexure 'B'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (7004422, pdf) Annexure B (404271, 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: 25 June 2021