Land and Environment Court New South Wales Medium Neutral Citation: Charara v Waverley Council [2021] NSWLEC 1650 Hearing dates: 8 July 2021 and 1 October 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The Court is satisfied that the Applicant's Written Request seeking to justify the contravention of the development standard in cll 4.4 and 4.4A of the Waverley Local Environmental Plan 2012 has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the Waverley Local Environmental Plan 2012, and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. (3) The appeal is upheld. (4) Development Application No. DA-92/2020 to carry out alterations and additions to an existing dwelling house at 427 Bronte Road, Bronte legally described as Lot 5 in DP 12755, is determined by granting consent to the application subject to the conditions in Annexure A. Catchwords: APPEAL – residential development – alterations and additions – cl 4.6 written request to justify contravention of floor space ratio development control – conditions of consent – prior complying development certificate – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Waverley Local Environmental Plan 2012, cll 4.4, 4.4A, 4.6 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Wollongong City Council v Vic Vellar Nominees Pty Limited (2010) 178 LGERA 445; [2010] NSWLEC 266 Category: Principal judgment Parties: Tony Charara (Applicant) Waverley Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) M Staunton (Respondent) Solicitors: Automic Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/323295 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 residential development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the actual refusal of a development application -residential Development Application No. DA-92/2020 to carry out alterations and additions to a dwelling approved via Complying Development Certificate CDC-215/2013 (the Proposed Development) at 427 Bronte Road, Bronte legally described as Lot 5 in DP 12755 (the Site). Specifically, the Proposed Development seeks consent for: 1. The construction of a new level to the dwelling located between the existing ground floor level and the first floor level in an area that has a 5.5m ceiling height. The Applicant has described this new level as a 'mezzanine'; and 2. Infill a small section of open area within the western boundary wall of the garage. 1. The proceedings commenced onsite and Objectors gave evidence on 9 June 2021. The conciliation conference was terminated on 8 July 2021 and the hearing commenced forthwith and was adjourned part heard to 1 October 2021 at which time the Court heard from an objector. 2. The Respondent consented, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant relying on amended plans and documents, and in accordance with that consent the Applicant uploaded the following documents to the NSW Planning Portal on 1 October 2021 to effect the amendment to the Proposed Development: 1. Amended architectural drawings dated 29 September 2021 and marked Rev F being drawings A.01.1 to A.05.1; 1. These were filed with the Court on 1 October 2021; 1. Amended cl 4.6 Written Request dated 29 September 2021 prepared by Lindsay Fletcher titled "Updated Clause 4.6 Variation Request 427 Bronte Road, Bronte" (Written Request); 1. This was filed with the Court on 1 October 2021; 1. Amended survey plan identified as "Plan No. 296/1 dated 24 September 2021 issued by Surveyor Warren Eldridge; 1. This was filed with the Court on 29 September 2021. 1. As a result of the Applicant amending the Proposed Development the Respondent did not press the contentions set out in the Statement of Facts and Contentions filed 14 December 2020 (SOFAC) (Exhibit 1). The Respondent appropriately noted that the Court must form the requisite state of satisfaction pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), and also take into account the oral evidence and the submissions of the neighbouring objectors in the context of the public interest. 2. It is noted that the neighbours did not object to the infilling of the western boundary wall of the garage. Objections were made in relation to privacy and other matters not relating to these proceedings but relating to the original approved and constructed dwelling pursuant to the Complying Development Certificate CDC-215/2013/C (CDC) and other works which the Court is informed is the subject of an application for a Building Information Certificate being assessed by the Respondent. 3. The parties did not rely on the Joint Expert Report prepared by Town Planners Lindsay Fletcher for the Applicant and Robert Reid for the Respondent for the reason that the report was no longer relevant. Instead, Mr Fletcher and Mr Reid gave oral evidence in court to address the amended Proposed Development including addressing the privacy concerns expressed by the neighbours. 4. The parties made submissions regarding Proposed/Draft Conditions of Consent and the Respondent filed Proposed/Draft Conditions of Consent with mark ups, noting the competing wording on 1 October 2021 following the close of submissions in accordance with my direction. I have marked this document as Exhibit 6. 5. I will address the jurisdictional prerequisite matter pursuant to cl 4.6 of the WLEP and then address the other matters as my reasons for the conclusion that it is appropriate to grant consent to the Proposed Development subject to conditions. Jurisdictional prerequisites Contravention of the Floor Space Ratio (FSR) Development Standard - Cl 4.6 Written Request 1. The Applicant relies on the Written Request to justify the contravention of the Floor Space Ratio (FSR) Development Standard. The Respondent supports the written justification of the contravention FSR Development Standard by the Proposed Development. 2. Clause 4.4 of the WLEP FSR Development Standard defers to cl 4.4A of the WLEP for the methodology of the calculation of the FSR Development Standard and the agreed result of applying the formula is an FSR Development Standard of 0.7:1. The Proposed Development proposes an FSR of 0.817:1 or a variation of 16.77%. 3. There are a number of matters I must consider and form an opinion of satisfaction pursuant to cl 4.6 before consent can be granted when there is a contravention of a development standard. The first consideration is whether I am satisfied that the cl 4.6 Written Request has demonstrated that compliance with the FSR Development Standard is unreasonable or unnecessary. Unreasonable and unnecessary cll 4.6(3)(a) and 4.6(4)(a)(i) 1. The cl 4.6 Written Request relies on the first test provided in the decision in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [42] as follows: "The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard". 1. I accept the Applicant's submission that although other tests or methods are listed in Wehbe, there is no need to consider or determine the argument of abandonment, which is not conceded by the Respondent, and I conclude that it is unnecessary to make any findings as to whether the Respondent has abandoned the FSR Development Standard which is the fourth test in Wehbe at [47]. 2. Objectives of the FSR Development Standard are contained in cl 4.4 of the WLEP, and I accept the submission of the parties that these can be read as being the objectives of cl 4.4A of the WLEP. The objectives are as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows— (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (NA) (b) to provide an appropriate correlation between maximum building heights and density controls, (Page 5 Written Request) (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (page 5 – 7 Written Request) (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality, (page 7- 8 Written Request). 1. Objectives (b), (c) and (d) are relevant to the Proposed Development and the Respondent agrees that these are achieved as a result of the amended Proposed Development because of the following: 1. The window to the West from the walkway will be translucent glass addressing any privacy concern; 2. There will be no opening on the western wall as previously approved in the CDC; and 3. The mezzanine floor has been pulled back by 1m from the window at the front of the dwelling, therefore any perception of looking at the dwelling from the outside will remain unchanged. 1. The relevant objectives of the FSR Development Standard are comprehensively addressed at pages 5 to 10 in the cl 4.6 Written Request, and at page 8 which also includes evidence that the opinion that the Proposed Development is consistent with the objectives of the FSR Development Standard is shared by Council's Senior Development Assessment Planner and the Table extracted from his report dated 30 May 2020 is included in the cl 4.6 Written Request. Sufficient environmental planning grounds cll 4.6(3)(b) and 4.6(4)(a)(i) 1. The relevant objects of the EPA Act identified in the cl 4.6 Written Request at page 12, are listed and relied upon as sufficient environmental planning grounds to justify the contravention of the FSR Development Standard and summarises that the Proposed Development achieves the objects of the EPA Act through: "1. Maximising orderly and economic use of the existing development, by exchanging the enjoyment of the void for the utilisation of the space as bedroom or home office space; 2. promoting good overall design by enhancing flexibility of the existing development with no material adverse impact on the overall design of the development or neighbouring residents; and 3. promoting amenity by preserving the character of the locality, and amenity enjoyed by neighbouring owners." 1. I accept the Applicant's submission that the objects of the EPA Act are not an exclusive or exhaustive list but are a useful starting point for environmental planning grounds. 2. The Applicant referred the Court to the Assessment report referred to in the cl 4.6 Written Request at para 4 on page 1, and submits that there are in fact three council reports as follows: 1. At Exhibit 2A Tab 4 where the Proposed Development was recommended for refusal because the FSR Development Standard was contravened and there was no cl 4.6 Written Request resulting in the Council not having any power to grant the consent sought; 2. At Exhibit A Tab 7 assessment report date 4 and 7 August 2020 and a previous cl 4.6 Written Request is considered; and finally 3. At Exhibit 2A Tab 10 the assessment report of 8 October 2020 at folio 89 commences the consideration of the previous cl 4.6 Written Request and at folio 91 provides an opinion that there are "sufficient environmental planning grounds" to justify the contravention of the FSR Development Standard. 1. I am satisfied that the cl 4.6 Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the FSR Development Standards for the reasons given at page 12 of the cl 4.6 Written Request summarised above. 2. For the reasons given above, I am satisfied pursuant to cl 4.6(4)(a)(i) that the cl 4.6 Written Request has adequately addressed the matters required to be demonstrated by subclause (3), namely, that compliance with the FSR Development Standard is unnecessary because the objectives of the FSR Development Standard are achieved notwithstanding non-compliance with the FSR Development Standard, and that there are sufficient environmental planning grounds to justify the contravening of the FSR Development Standard. Public Interest cl 4.6(4)(a)(ii) – is the Proposed Development consistent with the objectives of the zone and the objectives of the FSR Development Standard? 1. The final state of satisfaction I am required to achieve is that the Proposed Development will be in the public interest because it is consistent with the objectives of the FSR Development Standard and the objectives of the zone in which the Proposed Development is proposed to be carried out. 2. I have already considered the consistency of the Proposed Development with the objectives of the FSR Development Standard and I find that I am satisfied that the Proposed Development is consistent with the objectives of the FSR Development Standard. 3. The cl 4.6 Written Request comprehensively addresses the objectives of the R2 Low Density Residential zone and concludes at page 12 that the Proposed Development is consistent with the zone objectives as follows: "The proposal is consistent with the zone objectives in that the building will continue to provide housing to meet the needs of the community in a building type that is permissible in the zone and compatible with the other residential development forms existing in this locality. As the proposal is a residential development, the second objective relating to 'other land uses' is not applicable to this proposal. The proposal is not antipathetic to the third zone objective as the provision of an additional bedroom/adaptable work from home space without any increased on-site are parking facilities may reduce the need for travel but is unlikely discourage public transport usage." 1. I am therefore satisfied that the Applicant's Written Request seeking to justify the contravention of the development standard in cll 4.4 and 4.4A of the WLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Consideration of matters under s 4.15 EPA Act 1. The s 4.15 EPA Act matters for considerations are quite limited in light of the resolution of the contentions raised by the Respondent in the SOFAC as a result of the Applicant amending the development application. 2. I have reviewed and considered the written submissions made in relation to the Proposed Development (s 4.15(d) of the EPA Act) which are contained in Exhibit 2A, Tabs 2, 3, 8 and 9. I have also taken into account the oral submissions made to the Court during the proceedings. 3. The proposed infilling of the garage walls is wholly uncontroversial and the proposed mezzanine level is now also uncontroversial from the Respondent's perspective as it is wholly internal development with no amenity impacts (other than privacy which is dealt with by the conditions of consent) and cannot be read as an additional storey from the outside of the dwelling. 4. It is relevant to note that the Proposed/Draft Conditions of Consent (Exhibit 6) is expressly limited to the Proposed Development and that at condition 1B, the development consent expressly does not authorise the construction or use of various specified items and areas in the dwelling, and finally, at condition 1C the development consent expressly provides for no opening to be created in the western wall at the mezzanine level. Conditions of Consent 1. Following neighbour objector's oral submissions and the evidence of the planning experts, the parties contemplated the treatment of the eastern mezzanine window. The Applicant and Respondent have each proposed a condition of consent for the determination by the Court and the 2 versions are as follows: 1. Consent condition 1D proposed by the Applicant: "The window on the eastern elevation of the mezzanine level is to be fitted with a western red cedar batten screen that cannot open to more than 30 degree angle to prevent overlooking of the bathroom on the first floor level of the adjoining property to the east." 1. Consent condition 1D proposed by the Respondent: "The window on the eastern elevation of the mezzanine level is to be either frosted glass or to be fitted with a fixed louvred privacy screen angled at 45 degrees so that privacy is maintained to the existing bathroom window at the first floor level of the adjoining property to the east at 429 Bronte Rd." 1. Privacy concerns expressed by the neighbours and evidence of the Town Planners. "Especially at night" when the bathroom light is on. The experts noted during the proceedings that the public walkway that runs along the side boundary between the two dwellings, provides for the potential for members of the public to overlook into the bathroom window of concern. 2. CDC plans did not provide for any window treatment or privacy screening, although it is relevant to note that the relevant window approved by the CDC plans did not have a habitable floor adjacent to it nor did it pose any potential privacy risk as it was impossible for a person to be close to this window. The Proposed Development will result in the construction of a mezzanine floor allowing for persons to stand at or near the eastern elevation window. 3. The Applicant, at first instance, submits that there is no evidence that it is necessary to treat the window on the eastern elevation of the mezzanine level and if a condition is to be imposed then prefers for the Applicant to have the option as to treating the glass or installing timber batons. The Respondent prefers the timber batons angled at 30 degrees. 4. I conclude that the combination of the evidence of the neighbour, expressed at the initial site inspection, and again during the proceedings on 1 October 2021, together with the fact that the result of the Proposed Development will change the use of the eastern elevation mezzanine window, there is sufficient evidence to warrant a condition of consent for privacy treatment to the mezzanine window. In light of the fact that there is an existing public walkway and that the privacy concern raised is limited primarily at night, I am satisfied that the Applicant may choose the privacy screening method and I conclude that the Applicant's proposed wording is appropriate for consent condition 1D as quoted above at para [30(1)] and that is it appropriate to delete the Respondent's proposed wording for consent conditions 1D from Exhibit 6. Public Interest 1. In addition to the finding as to the public interest in relation to the cl 4.6 FSR Development Standard, it is desirable to address and respond to the concerns raised in the submissions relating to works undertaken on the Site which were not approved by the CDC and the consent sought by the Applicant in these proceedings. 2. It is relevant to note that the consent sought is limited to the very discreet elements being alterations and additions to an existing dwelling and that the word existing necessarily implies 'lawful'. The parties agree with the legal principle in the decision of Biscoe J in Wollongong City Council v Vic Vellar Nominees Pty Limited (2010) 178 LGERA 445; [2010] NSWLEC 266, at [68] to [85] which deals with the meaning of the term "existing dwelling-house" and I include the relevant extract as follows firstly at para [75]: "There is a general rule that an interpretation of an Act or contract will not be adopted that will permit a person to take advantage of their own wrong, such as where a person seeks a benefit under a contract by reason of their own contractual default: TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 147; Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [2.37]; Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32]." 1. Secondly, to avoid any doubt as to the application of this principle to these proceedings, at [84] Biscoe J confirms as follows: "I do not see why in principle the question of a lawfulness requirement does not arise for consideration at the stage of construing an environmental planning instrument." 1. I note that the cl 4.6 Written Request at page 2 also relies on the reasoning set out by Biscoe J and confirms that consistent with this reasoning, the floor area of the spaces that were not shown on the CDC for the existing dwelling and have not been approved, these spaces should be excluded in calculating both the existing and the proposed gross floor area. 2. I am satisfied that the Proposed Development is in the public interest for the reasons contained in this judgment. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The Court is satisfied that the Applicant's Written Request seeking to justify the contravention of the development standard in cll 4.4 and 4.4A of the Waverley Local Environmental Plan 2012 has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the Waverley Local Environmental Plan 2012, and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 3. The appeal is upheld. 4. Development Application No. DA-92/2020 to carry out alterations and additions to an existing dwelling house at 427 Bronte Road, Bronte legally described as Lot 5 in DP 12755, is determined by granting consent to the application subject to the conditions in Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (201090, 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: 26 October 2021