Land and Environment Court New South Wales Medium Neutral Citation: MHN Design Union Pty Limited v Waverley Council (No.2) [2022] NSWLEC 1626 Hearing dates: 23-25 May 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No 305/2021 seeking consent for alterations and additions to an existing building, including the demolition of the rear section of the outbuilding and construction of a new five storey shop top housing development to the rear comprising a basement level, new ground floor commercial premises and eight residential units above at 31-33 Hall Street, Bondi Beach is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All exhibits are returned, except for Exhibits A, W, Z and 7 Catchwords: DEVELOPMENT APPLICATION: shop top housing development – heritage conservation – effect of proposed development on item of heritage significance – whether proposal exhibits design excellence – remediation of land Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Waverley Local Environmental Plan 2012, cll 6.1, 6.2 Cases Cited: MHN Design Union Pty Limited v Waverley Council [2022] NSWLEC 1405 Category: Principal judgment Parties: MHN Design Union Pty Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) M Wright SC (Respondent) Solicitors: Reid & Vesely (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/321985 Publication restriction: No Judgment 1. COMMISSIONER: In a judgment given on 27 July 2022, the Court gave its decision MHN Design Union Pty Limited v Waverley Council [2022] NSWLEC 1405 in respect of Development Application No 305/2021 seeking consent for alterations and additions to an existing building, including the demolition of the rear section of the outbuilding and construction of a new five storey shop top housing development to the rear comprising a basement level, new ground floor commercial premises and eight residential units above at 31-33 Hall Street, Bondi Beach (the site). 2. In my preliminary judgment, I accepted the Respondent's submission that, absent the results of further site investigation, the Court was unable to form a view on whether the land is contaminated and if the land is contaminated, whether the land is suitable in its contaminated state, or will be suitable, after remediation, being a requirement of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). 3. Relatedly, the Court was also unable to form a view on the quality of the fill or the soil to be excavated for the purposes of the basement proposed, which is a requirement of cl 6.2(3)(c) of the Waverley Local Environmental Plan 2012 (WLEP). 4. Accordingly, I directed that a detailed site investigation (DSI) of the land concerned, be carried out in accordance with the contaminated land planning guidelines, pursuant to cl 4.6(2) of the Hazards SEPP, and that amendments to conditions of consent consistent with the preliminary findings of the original decision and consequential to the findings of the DSI, be agreed. 5. On 2 August 2022, the Applicant filed a Notice of Motion, unopposed by the Respondent, seeking an extension to the time frame directed by the Court. The Applicant's motion was granted. 6. The Applicant filed the DSI, completed by EDG Environmental Geoscience dated 13 September 2022, with the Court on 14 September 2022, in accordance with the extension of time granted to do so. I note here that the conclusion reached in the DSI is that the site is suitable for the proposed development within the terms of s 4.6 of the Hazards SEPP, subject to certain recommendations. 7. On 11 October, the Applicant sought a further extension of time, unopposed, to finalise the conditions of consent. The extension was granted and the agreed conditions of consent were filed with the Court on 21 October 2022, incorporating the DSI. 8. Following completion of the DSI, the Court now has before it sufficient material to consider those matters for which material was previously lacking. 9. In particular, have considered the conclusions and recommendations contained in the DSI, the Geotechnical Site Investigation prepared by Crozier Geotechnical Consultants dated 29 March 2022 (Geotechnical Report), the stormwater management plan prepared by ITM design Pty Ltd, dated 9 July 2021 (and addendum dated 24 March 2022), and the terms of Condition 30. On the basis of the above plans and other documents, I conclude the proposal satisfactorily addresses those matters to be considered at cl 6.2(3) of the WLEP. 10. I also note that the site is located in an area identified on the Acid Sulfate Soils Map at cl 6.1(2) of the WLEP as being class 5 acid sulfate soil, and appears to be within 500m of class 4 soil. While the Statement of Environmental Effect, prepared by LK Planning dated 28 June 2021 (Exhibit Q) states on p 16 that no excavation is proposed, that is somewhat at odds with architectural plan drawing DA 2000, which depicts the Basement Plan. 11. The Geotechnical Report identifies the depth of excavation to be a maximum of 4.75m below existing ground level, at the location of the lift pit, and the depth of the water table is at an approximate depth of 5m. On the basis of the relative levels on the site shown on the Survey (Exhibit R), and the depth of the water table, I conclude the works are not likely to lower the water table on the adjacent class 4 land, pursuant to cl 6.1 of the WLEP. 12. As the parties have now complied with those directions, and the Court has considered those matters at cll 6.1 and 6.2 of the WLEP, it is appropriate to make orders granting development consent in accordance with s 4.16 of the Environmental Planning and Assessment Act 1979. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No 305/2021 seeking consent for alterations and additions to an existing building, including the demolition of the rear section of the outbuilding and construction of a new five storey shop top housing development to the rear comprising a basement level, new ground floor commercial premises and eight residential units above at 31-33 Hall Street, Bondi Beach is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All exhibits are returned, except for Exhibits A, W, Z and 7 T Horton Commissioner of the Court ********** Annexure A 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: 11 November 2022