Land and Environment Court New South Wales Medium Neutral Citation: Waverley Street Pty Ltd v Waverley Council [2022] NSWLEC 1266 Hearing dates: Conciliation conference held on 22 February 2022, 18 and 31 March 2022 and 8 April 2022, final agreement filed 27 April 2022 Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-325/2021 and rely on the amended plans and documents listed at condition 1 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $26,000 within 14 days of these orders. (3) The appeal is upheld. (4) Consent is granted to Development Application DA-325/2021 (as amended) for the demolition of existing structures and construction of an eight-storey residential apartment building containing eight units, a roof top communal area, two levels of basement parking and integrated car lift access at 40 Waverley Street, Bondi Junction, subject to the conditions of consent contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – building bulk and scale – residential amenity – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 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, cl 28 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.9 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (December 2021) Category: Principal judgment Parties: Waverley Street Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/319681 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 deemed refusal of Development Application DA 325/2021 (the DA) by Waverley Council (the Respondent). The DA sought consent for the demolition of existing structures, removal of an existing tree and vegetation, and construction a nine-storey residential flat building containing nine units with two levels of basement car parking accessed via an integrated car lift and comprising eleven resident car spaces, one visitor car space, three motorcycle spaces and nine bicycle spaces, at 40 Waverley Street, Bondi Junction (the site). 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 22 February 2022, 18 and 31 March 2022 and 8 April 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains substantially the same as the original DA, a series of design changes cumulatively resolve the contentions initially raised by the Respondent, which in turn related to impacts associated with the contravention of development standards for floor space ratio and height of building, excessive building bulk and scale, poor urban design and residential amenity, and inadequate deep soil and landscape design amongst other contentions. 6. Of particular note, the amended DA has been reduced in scale by one level to eight storeys and now conforms with the maximum height of building and floor space ratio development standards set out in the Waverley Local Environmental Plan 2012 (WLEP). Design amendments have also improved internal amenity, building separation, visual privacy, urban design, landscape design and the resultant architectural character of the proposal. The final amended DA now comprises a total of 8 apartments. 7. 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 amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The original DA was publicly notified for 21 days from 1 September 2021. Fourteen submissions were received by the Respondent. Consequently, I am satisfied, that mandatory community consultation requirements set out at s 2.22 of the EPA Act have been met. 11. The parties agree, and I am satisfied, that the original DA was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 12. The parties agree and I am satisfied, that cl 7 of SEPP 55 (now cl 4.6 of the Resilience and Hazards SEPP) requires the consent authority to not grant development consent unless it has considered whether land is contaminated. 13. In this regard, the parties agree, and I am satisfied, the site has historically been used for residential purposes not associated with contamination. No contamination was found to affect the redevelopment of the adjoining site at 42-48 Waverley Street. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. 14. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Brian Meyerson (NSW registered architect 4,907), has prepared a Design Verification Statement dated 6 April 2022, fulfilling the requirements of cl 50(1AB) of the EPA Reg. 15. Additionally, pursuant to cl 28 of SEPP 65, the original DA was referred to the Waverley Design Excellence Advisory Panel. The Panel considered the DA on 8 September 2021 making recommendations relating to built form. The parties agree and I am satisfied, that the amended DA is capable of meeting the design principles of SEPP 65 and/or achieve design excellence and does not need to be reviewed again by the Panel. 16. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate dated 12 March 2022, prepared by Senica Consultancy Group, has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate. 17. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). The site is partially located within the Sydney Trains Corridor Protection Zone as it is located approximately 55m to the east of a discontinued section of the Eastern Suburbs underground railway line. 18. The Transport and Infrastructure SEPP requires the Respondent to notify Sydney Trains of the DA. On 10 November 2021, Sydney Trains granted concurrence and subsequently has been provided with a version of the amended plans. Sydney Trains made no further comment on the amended plans and I am satisfied that s 2.98 of the Transport and Infrastructure SEPP has been addressed. 19. The parties agree, and I am satisfied, that the WLEP is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent and that the amended DA achieves the objectives of the R4 zone. 20. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA. Specifically, the final amended DA has been reduced in height and total gross floor area so that it is consistent with the height of building and floor space ratio development standards set out at cll 4.3 and 4.4 of the WLEP. 21. The parties agree, and I am satisfied, that the site is not located within the vicinity of any heritage items pursuant to cl 5.10 - Heritage conservation - of the WLEP. 22. The parties agree, and I am satisfied, that pursuant to cl 5.21 - Flood planning - of the WLEP, the site is not identified within a flood planning area. 23. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the WLEP, the site is not located within a mapped acid sulfate soils area. 24. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the WLEP, the Applicant has provided a Geotechnical Investigation Report, prepared by ei Australia and dated 7 July 2021. This report addresses the matters for consideration set out in cl 6.2(3). Conditions of consent have been imposed to require further testing. 25. The parties agree, and I am satisfied, that pursuant to cl 6.4 - Terrestrial biodiversity - of the WLEP, the site is not identified within the terrestrial biodiversity map. 26. The parties agree, and I am satisfied, that pursuant to cl 6.9 - Design excellence - of the WLEP, the site is not identified within the key sites map. 27. 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. 28. The Court notes that: 1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent. 2. The Applicant has filed the amended DA with the Court on 8 April 2022. 3. The amended DA was uploaded to the NSW Planning Portal on 27 April 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-325/2021 and rely on the amended plans and documents listed at condition 1 of Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $26,000 within 14 days of these orders. 3. The appeal is upheld. 4. Consent is granted to Development Application DA-325/2021 (as amended) for the demolition of existing structures and construction of an eight-storey residential apartment building containing eight units, a roof top communal area, two levels of basement parking and integrated car lift access at 40 Waverley Street, Bondi Junction, subject to the conditions of consent contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (443532, pdf) Architectural Plans (31276633, 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: 24 May 2022