Land and Environment Court New South Wales Medium Neutral Citation: Lewis v Waverley Council [2022] NSWLEC 1056 Hearing dates: Conciliation conference on 1 February 2022 Date of orders: 4 February 2022 Decision date: 04 February 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard in clause 4.3, Height prepared by GSA Planning dated January 2022, is upheld; (2) the appeal is upheld; (3) consent is granted for development application no. DA48/2021, for the alterations and additions to dwelling house, including a rear second floor addition at 134 Hewlett Street, Bronte NSW, subject to the conditions contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to dwelling house – conciliation conference – agreement between parties - orders 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, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cl 14 Waverley Local Environmental Plan 2012, cll 4.3, 4.6, 6.1, 6.2 Category: Principal judgment Parties: D'Leanne Lewis (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Paterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/202239 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Waverley Council (the Respondent) of Development Application No. DA-48/2021 seeking consent for alterations and additions to an existing residential dwelling at 134 Hewlett Street, Bronte (the site). 2. More particularly, the proposal includes the demolition of an existing pitched roof at the rear of the dwelling, and the addition of a rear second floor addition with balcony fronting Hewlett Street. 3. The appeal was listed for mandatory conciliation on 1 February 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 4. Prior to the conciliation conference, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the contentions in the matter. 5. On the basis of the amended plans, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 6. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 1 February 2022. 7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [24]. 9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 10. The site is located within the R2 Low Density Residential zone identified by the Waverley Local Environmental Plan 2012 (WLEP) in which dwelling houses are permitted with consent, where consistent with the objectives of the R2 zone that are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. 1. The proposed development exceeds the height standard at cl 4.3 of the WLEP, and the Applicant relies on a written request prepared in accordance with cl 4.6 of the WLEP by GSA Planning, dated January 2022. 2. The relevant objectives of the height standard at cl 4.3 of the WLEP are: (1) The objectives of this clause are as follows— (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, … (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. A maximum exceedance of 3.32m above the numerical height standard of 8.5m is identified at the forward or southern portion of the upper most level, depicted in Figure 2 of the written request, re-produced below. 1. Figure 2 of the written request also identifies the extent of the exceedance evident in the existing built form. 2. I am satisfied that compliance with the height standard is unreasonable or unnecessary because, notwithstanding the non-compliance with the numerical standard, the objectives of the height standard are achieved. The reasons for this are as follows: 1. In respect of the first objective at [12], while views will be lost from the rear neighbour's primary bedroom at No 2 Andrew Street, I accept that the view loss primarily results from the complying portion of the uppermost level that is within the height standard, and that the geometry of the form is shaped to facilitate the sharing of views, and is not proposed to occupy the full width of the existing building footprint that would otherwise comply. 2. Furthermore, on the basis of the view analysis prepared by the Applicant's architect, contained in Figures 6-11 of the written request, I note views to the water, that are currently enjoyed over the side boundary of the subject site, and Bronte Park, from the rear of the outdoor terrace at No 2 Andrew Street are preserved. 3. Additionally, I accept that visual privacy to adjoining properties is preserved, and that there is no, or negligible impact on adjoining properties in respect of overshadowing and solar access. 4. In arriving at this conclusion, I consider the preservation of amenity to be a question posed in general and not isolated or determined by one aspect of amenity such as loss of solar access, or view. 5. In respect of the second objective at [12], I accept that while the existing two-storey dwelling currently exceeds the 8.5m height plane, the existing built form also appears anomalous when viewed in context with existing dwellings at No's 136-140 Hewlett Street that appear larger in bulk and height. Relatedly, I also accept that the height plane, when applied to the steeply sloping site, effectively encourages a stepping in the vertical form to achieve the floor space ratio permitted on the site. 1. Next, I am also satisfied that there are sufficient environmental planning grounds set out in the written request to justify the contravention of the height standard that may be summarised as follows: 1. Firstly, the extent of the exceedance when understood in plan is reduced from that portion currently evident in the existing dwelling and is partly due to the siting of the existing built form, the subject of alterations and additions, on a steeply sloping site. 2. Secondly, the stepped form of the proposal is not dissimilar to, and is compatible with nearby development at Nos 136-140 Hewlett Street, and with recently approved development at No 130 Hewlett Street that exceeds the height standard. 3. Thirdly, the design of the uppermost level adequately preserves the environmental amenity of adjoining properties, including the sharing of views with the rear neighbour at No 2 Andrew Street by virtue of the eastern setback. 1. Additionally, as I am satisfied that the proposed development is consistent with the objectives of the height standard, and the objectives for development in the R2 zone at [10], I am satisfied the development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the WLEP. I have also considered the matters to which the Secretary would have regard in granting his, her or its concurrence at cl 4.6(5) of the WLEP and find no grounds on which concurrence would be withheld. 2. I am otherwise satisfied as to the jurisdictional requirements of the WLEP. To that end, I note that as the proposed development does not involve earthworks, those matters at cl 6.1 of the WLEP in respect of acid sulfate soils, and the matters at cl 6.2 of the WLEP are not a relevant consideration. 3. However, the site is located within land mapped as the coastal use area under State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP). I have considered the matters at cl 14(1)(a) of the Coastal Management SEPP and I am satisfied that no adverse impacts arise from the proposed development in accordance with cl 14(1)(b) of the Coastal Management SEPP. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A376301_03), prepared by Damian O'Toole Town Planning dated 28 January 2022, in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes: 1. that Waverley Council as the relevant consent authority has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Development Application DA48/2021 the subject of these proceedings, in the following amended plans and detail: Plans/drawings Revision Prepared by Dated DA100 E MHNDUnion 17/01/2022 DA200 E MHNDUnion 17/01/2022 DA201 E MHNDUnion 17/01/2022 DA202 E MHNDUnion 17/01/2022 DA203 E MHNDUnion 17/01/2022 DA204 E MHNDUnion 17/01/2022 DA205 E MHNDUnion 17/01/2022 DA300 E MHNDUnion 17/01/2022 DA301 E MHNDUnion 17/01/2022 DA400 E MHNDUnion 17/01/2022 DA401 E MHNDUnion 17/01/2022 DA402 E MHNDUnion 17/01/2022 DA403 E MHNDUnion 17/01/2022 BASIX Certificate No. Dated A376301_03 28 January 2022 1. the Applicant has uploaded the application to the NSW Planning Portal on Tuesday 1 February 2022; and 2. the Applicant has subsequently filed the amended plans on Wednesday 2 February 2022. 3. The Court notes that the applicant has agreed to pay the Respondent's costs of the proceedings in the sum of $3,000.00 within 28 days of these orders. 1. The Court orders that: 1. The written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard in clause 4.3, Height prepared by GSA Planning dated January 2022, is upheld; 2. the appeal is upheld; 3. consent is granted for development application no. DA48/2021, for the alterations and additions to dwelling house, including a rear second floor addition at 134 Hewlett Street, Bronte NSW, subject to the conditions contained at Annexure A. ………………….. T Horton Commissioner of the Court (Annexure A) (326812, 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: 04 February 2022