Land and Environment Court New South Wales Medium Neutral Citation: MYGA Investments Pty Ltd v Waverley Council [2022] NSWLEC 1023 Hearing dates: Conciliation conference on 18 November 2021 Date of orders: 18 January 2022 Decision date: 18 January 2022 Jurisdiction: Class 1 Before: Shiels AC Decision: See Directions below at [23]. Catchwords: DEVELOPMENT APPLICATION – 2x3 Storey and 1x2 Storey Townhouses – Hearing – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55—Remediation of Land, cl 7(1) Waverley Local Environmental Plan 2012, cll 4.1C, 4.3, 4.6, 5.10, 5.11, 6.1, 6.3 Texts Cited: Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021) Waverley Development Control Plan 2012 Category: Principal judgment Parties: MYGA Investments Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: I Hemings SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/87341 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-7/2021. The application sought consent for the demolition of existing structures and construction of a two x three storey and one x two storey townhouses with basement parking for six cars and storage at 2 Princess St Rose Bay. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 August 2021 (and terminated on that date) before Acting Commissioner Bindon. 3. The Hearing was listed on 18 and 19 November 2021. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. A site view was scheduled and cancelled with the agreement of the parties and the court. 4. Prior to the hearing, amended plans and additional reports were prepared and provided to the Respondent to address the contentions. Joint Expert Traffic and Planning Reports were also prepared and filed with the court. 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. That agreement was reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council's Amended Statement of Facts and Contentions dated 14 October 2021. 5. The Applicant seeks leave to rely on the amended plans and documentation and the parties agree that all contentions have now been resolved by the amended documentations: 1. Amended Architectural Plans (Revision H) dated 12 November 2021; 2. Amended Architectural Plan Nos. 1.7, 1.12, 2.6 and 2.10 dated 17 November 2021; 3. Amended Landscape Drawing No. LP-P03 dated November 2021; 4. Updated Stormwater Plans (Revision C) dated12 November 2021; 5. Updated Shadow Diagrams; 6. Supplementary Traffic Statement dated 6 September 2021; 7. Updated On- site Stormwater Detention Checklist; 8. Photomontage; 9. Updated BASIX Certificate and NatHERS Certificate; and 10. The Agreed Conditions of Consent. 1. 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. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 3. In that regard, the parties agree, and I am satisfied, Waverley Local Environmental Plan 2012 (LEP) is the relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the amended proposal is permissible with consent. 4. The proposal is consistent with aims of the WLEP, satisfies the zone objectives and complies with all of the relevant development standards in Part 4 of the WLEP. 5. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation Area (cl 5.10). It is not subject to bushfire hazard (cl 5.11). 6. In respect of Part 6 of the WLEP, the site is not identified as affected by acid sulphate soils (cl 6.1). 7. The applicant has adequately demonstrated that the provisions of the clause are satisfied, and stormwater issues have been satisfactorily addressed. The Council has imposed consent conditions to reflect its requirements including compliance with the requirements of Sydney Water, the authority responsible for stormwater within the channel that affects the site (cl 6.3). The site is not identified as a Key Site on the Key Sites Map for the purpose of cl 6.9. 8. The amended plans are accompanied by a BASIX Certificate in accordance with Schedule 1 of the EPA Regulations. 9. Consideration has been given to Site Investigation contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land and I am satisfied, pursuant to the provisions of cl 7(1) of that policy. The site has a history of residential use and it is considered unlikely that the site is contaminated. 10. The proposed development is defined as multi dwelling housing and is not subject to assessment under the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development. 11. Draft State Environmental Planning Policy (Housing) 2021 was in draft form at the time of the hearing and gazetted on 26 November 2021. Although that environmental planning instrument does not relate to the subject Application, I have considered the Joint Expert Planning evidence and the Agreement between the parties. Having regard to the location of the site and the character of the area, I consider the design of the development is compatible with the character of the local area. 12. The evidence of the Council is that the development is consistent with the provisions and objectives of the Waverley Development Control Plan 2012 (DCP) and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission. 13. There are not any other matters contained in the Regulations that prevent the granting of consent. 14. I am satisfied, based on the evidence of the Council, that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, are acceptable and that the site is suitable for the development as proposed. 15. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council. 16. Accordingly, I am satisfied that the proposal is in the public interest. 17. 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. To enable me to make this judgement, the parties need lodge the Amended Application on the NSW Planning Portal. 18. Accordingly, I make the following directions: 1. The applicant is to lodge the Amended Application referred to above on the NSW Planning portal, within seven days of the date of these orders, and notify the respondent after it has been lodged. 2. In the event the applicant is unable to lodge the Amended Application on the NSW planning portal in accordance with the above order, the applicant is to notify the respondent and the court via Online Court as soon as possible but no later than 14 days after the date of these orders and request the matter to be relisted for further directions. ​​​​​​​……………………. Dr Gary Shiels Acting Commissioner of the Court ********** 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: 18 January 2022