Land and Environment Court New South Wales Medium Neutral Citation: Laws v Waverley Council [2021] NSWLEC 1389 Hearing dates: Conciliation conference on 1 July 2021 Date of orders: 13 July 2021 Decision date: 13 July 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended plans and material listed at Annexure B. (2) The appeal is upheld. (3) Development application no. D-131/2020, as amended, for the demolition of the existing dwelling and construction of a part 3 and part 4 storey dwelling with basement parking, swimming pool and associated landscaping works at 447 Bronte Road, Bronte, is approved subject to the conditions contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 77 and Sch 1 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Building Sustainability Index BASIX) 2014 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.4A, 4.6, 5.1, 5.1A, 5.10, 6.1, 6.2, 6.3, 6.4 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020) Waverley Development Control Plan 2012, Amendment 7 Category: Principal judgment Parties: Linda Laws (Applicant) Waverley Council (Respondent) Representation: Counsel: J Oldnow (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/364248 Publication restriction: No Judgment 1. COMMISSIONER: Linda Laws (the Applicant) has appealed the refusal by Waverley Council (the Respondent) of her development application (DA131/2020), made with owner's consent, seeking consent for demolition of existing structures, earthworks and construction of a five-storey dwelling (the Proposed Development) at 447 Bronte Road, Bronte (the Subject Site). 2. The Proposed Development includes: 1. demolition and earthworks; 2. a lower ground floor containing a garage; 3. a ground floor with swimming pool, a gym and rehabilitation facility; 4. a first floor containing a living area and two bedrooms; 5. a second floor including an open plan kitchen, dining area and family room; and 6. a third floor containing a master bedroom and an additional bedroom. 1. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of Waverley Local Environmental Plan 2012 (WLEP). The Proposed Development is permissible with consent on the Subject Site. 2. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 1 July 2021, and I presided over the conciliation conference. 4. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference, and no objectors had sought to make representations to the Court in relation to the proceedings. 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 development 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 matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept that: 1. the long-term use of the Subject Site has been for residential purposes, and no change of use is proposed; 2. on this basis of its past use, the Subject Site is unlikely to be contaminated and it remains suitable for its proposed use for a residential dwelling; 1. in relation to provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided a BASIX Certificate (No 1090682S_02) to accompany the development application to satisfy the requirement in Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and SEPP BASIX; 2. in relation to the provisions of WLEP, the Parties have confirmed, and I accept, that, with the exception of cl 4.4 in relation to the floor space ratio (FSR) development standard applicable to the Subject Site, the Applicant's development application (as amended) satisfies all other applicable provisions of WLEP. Where required, this satisfaction is supported through the imposition of conditions of consent within Annexure A to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of WLEP have been addressed by the Applicant's Proposed Development (as amended): 1. in relation to cl 4.3 of WLEP, the Proposed Development complies with the height of buildings development standard of 8.5m applicable to the Subject Site; 2. the Subject Site is not identified as land intended to be acquired for public purposes pursuant to cll 5.1 and 5.1A of WLEP, concerning land acquisition and development on land intended to be acquired for public purposes; 3. in relation to the provisions of cl 5.10 concerning heritage conservation: 1. the Subject Site is not a heritage item, nor does it adjoin any heritage items; 2. the Subject Site is not located within a Heritage Conservation Area; 3. the Subject Site does adjoin the Bronte Road and Gardyne Street Landscape Conservation Areas (Item Nos. C30 and C45, respectively), and cl 5.10 requires the consent authority to consider the impact of the Proposed Development on the heritage significance of the nearby conservation areas; 4. the parties submit, and I accept, that the impacts of the Proposed Development on the Bronte Road and Gardyne Street Landscape Conservation Areas (LCAs) have been considered and the Proposed Development has been assessed as appropriate in respect of any impacts on those LCAs. 1. in relation to cl 6.1 concerning acid sulfate soils, the Parties submit, and I accept, that the Subject Site is classified as Class 5 land in relation to acid sulfate soils as the Subject Site is located within 500m of an adjacent Class 4 acid sulfate soil mapped land. I am also satisfied that: 1. the Proposed Development will not cause the water table to be lowered below 1m Australian Height Datum (AHD); 2. a Geotechnical Investigation prepared by Ascent dated 12 March 2020 has confirmed that no significant water table is expected to influence the Subject Site; 3. the Parties have assessed, and I am satisfied, that an acid sulfate soil management plan is not required for the Proposed Development; 1. in relation to the provisions of cl 6.2 of WLEP concerning earthworks, a Geotechnical Investigation prepared by Ascent dated 12 March 2020 confirms that appropriate measures are proposed to avoid, minimise or mitigate the impact of the Proposed Development on adjacent properties and the Parties submit, and I accept, that the proposal satisfies the matters outlined in cl 6.2(3) of WLEP; 2. the Subject Site is not identified to be a Flood Planning Area. Accordingly, the requirements of cl 6.3 of WLEP are not enlivened by the Proposed Development; 3. the Subject Site is not identified as a terrestrial biodiversity area, and so the provisions of cl 6.4 of WLEP are not enlivened by the Proposed Development; 1. in relation to the WLEP provisions concerning the FSR development standard that is applicable to development on the Subject Site: 1. the Proposed Development is subject to a FSR development standard of 0.52:1, pursuant to cll 4.4 and 4.4A of WLEP; 2. the Applicant's development application, as amended, proposes a FSR of 0.56:1; 3. the Applicant relies on a written request, prepared by LK Planning and dated 15 June 2021, pursuant to the provisions of cl 4.6 of WLEP to vary the FSR development standard applicable under cll 4.4 and 4.4A; 4. the Applicant's written request stated, and I agree, that: 1. compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case because the Proposed Development achieves the objectives of the FSR control in cl 4.4 of WLEP for reasons provided within the written request, notwithstanding the variation; 2. the topography of the Subject Site along with the design of the building, which facilitates the development achieving object s 1.3(g) of the EP&A Act concerning the promotion of good design and amenity, provide sufficient environmental planning grounds to justify contravening the FSR standard; 3. the Proposed Development is consistent with the objectives for development within the R2 Low Density Residential zone in which the development is proposed to be carried out, and notably it provides for the housing needs of the community within a low density residential environment; 1. having considered the Applicant's written request to vary the FSR development standard applicable to development on the Subject Site, I am satisfied that the request is well founded because: 1. the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of WLEP; and 2. the Proposed Development will be in the public interest because it is consistent with the objectives of the FSR standard in cl 4.4 of WLEP, and the objectives for development within the R2 zone in which the Proposed Development is to be carried out; 1. the Proposed Development, as amended, was notified on 1 May 2021 consistent with the provisions of Waverley Development Control Plan 2012, Amendment 7, and cl 77 of the EP&A Regulation. The Parties advise, and I accept, that they have given consideration to the submissions made in response to notification of the Proposed Development in reaching agreement in this appeal. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [9], 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 to dispose of the proceedings in accordance with the Parties' decision. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans and material listed at Annexure B. 2. The appeal is upheld. 3. Development application no. D-131/2020, as amended, for the demolition of the existing dwelling and construction of a part 3 and part 4 storey dwelling with basement parking, swimming pool and associated landscaping works at 447 Bronte Road, Bronte, is approved subject to the conditions contained at Annexure A. ………………………….. M Chilcott Commissioner of the Court Annexure A (333706, pdf) Annexure B (98215, 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: 14 July 2021