Land and Environment Court New South Wales Medium Neutral Citation: MH Development One Pty Ltd v Waverley Council [2023] NSWLEC 1072 Hearing dates: Conciliation Conference on 13-14 February 2023 Date of orders: 22 February 2023 Decision date: 22 February 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA-82/2016 is modified in the terms in Annexure A. (3) Development Consent No. DA-82/2016 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION: modification application for residential flat building in R2 Medium density residential zone – conciliation conference – agreement between parties - orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 7.4, 8.9 Environmental Planning and Assessment Regulation 2021, s102, 113, Sch 7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.9 Cases Cited: Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1159 SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Texts Cited: Waverley Planning Agreement Policy 2014 (Amendment No. 4) Category: Principal judgment Parties: MH Development One Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/203491 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council of modification application No DA 82/2016/E (modification application) seeking consent to modify development consent DA-82/2016 (original consent) for the demolition of existing buildings, amalgamation of two Torrens title lots, and construction of a four-storey residential flat building comprising 11 units and basement car parking and Strata subdivision at 629-631 Old South Head Road, Rose Bay (the site). 2. The modification application, made pursuant to s 4.56 of the EPA Act, seeks consent for the following: 1. Removal of car stackers and reducing the total car parking spaces from 19 to 14 (1 accessible) on Basement Level together with expansion of the basement northwards and eastwards and reconfiguration of car park layout; 2. Provision of a new north-facing one bedroom unit (known as Unit 1.02) in what was previously a void area to accommodate car stackers on Level 1; 3. Relocation of bicycle and storage room to the southern side of the building. The number of bicycle spaces will be reduced from 12 to 9 on Level 1; 4. Internal reconfiguration and minor external changes on Level 2 to convert the two units at the front into a three-bedroom unit (known as Unit 2.01) and minor reconfiguration of Unit 2.01 (two bedroom unit); 5. Conversion of two units into one three bedroom unit (known as Unit 3.01) on Level 3; 6. Reconfiguration of Unit 4.02 on Level 4; 7. Reduction of thickness of external walls on Level 5, resulting in additional gross floor area; 8. Increase of extent of lift overrun; 9. Further horizontal and vertical excavation of the site; 10. Amendments to internal layouts to Units 1.01, 1.02, 2.01, 3.01, 4.01 and 4.02, and minor external alterations. 11. Alteration to the internal staircase of the penthouse unit (Unit 4.02) which results in a minor relocation of the sloped glass to the north of the roof level. 1. As a result of the above, the modification application seeks consent for eight apartments, 14 car parking spaces, 9 bicycle spaces and 4 motorcycle spaces. 2. On 13 December 2023, the Applicant amended the modification application and was granted leave to rely upon amended plans and other documents listed in the affidavit of Mr Anthony Boskovitz dated 7 December 2022. 3. While the matter was listed before me for hearing on 13 February 2023, the parties advised that, as a result of further amendments to the modification application, the parties had reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent approved the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 4. A signed agreement prepared in accordance with s 34(10) of the Land and Environment Court Act 1979 (LEC Act) was filed with the Court on 14 February 2023, and the matter was re-allocated to me under s 34 of the LEC Act. 5. 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. 6. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [26]. 7. 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. 8. Firstly, with respect to s 4.56 of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted in Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1159. 9. Secondly, I record here that the modification application has been notified, and the parties advise me that objectors press no further written submissions on the basis of the further amended plans and other documents at [5]. 10. Thirdly, I have also taken into consideration those matters under s 4.15(1) of the EPA Act as they are relevant to the modification application, as well as the reasons given by the Court for the grant of the consent in the original consent. 11. Fourthly, I am satisfied as the presiding Commissioner, for the reasons that follow, that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. Waverley Local Environmental Plan 2012 1. The site is located within the R3 Medium Density Residential zone, according to the Waverley Local Environmental Plan 2012 (WLEP), in which residential flat buildings are permitted by omission from item 2 and 4 in the land use table. 2. The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium 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. • To increase or preserve residential dwelling density. • To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability. • To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. 1. The proposal exceeds the height permitted under the height of building standard at cl 4.3 of the WLEP, and also exceeds the floor space ratio permitted under cl 4.4 of the WLEP. However, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the WLEP does not apply to modification applications. 2. As the presence and risks of acid sulfate soils, found at cl 6.1 of the WLEP, were properly a matter for consideration in the original consent, I consider the matter addressed, as do I in respect of earthworks proposed, and the issues for consideration at cl 6.2 of the WLEP. To the extent that the modification application now proposes additional excavation in the south east of the site, I note the bore hole logs for Bore Hole 1 at Appendix A of the Geotechnical Investigation Report prepared by Foundation Earth Sciences, dated October 2021, taken in the vicinity of the excavation. The logs indicate sandstone at a depth of 5m. I also note the conditions of consent at Condition 22 provide for adoption of recommendations contained in the Geotechnical Investigation Report. 3. The original consent was granted prior to the adoption of the design excellence provision, at cl 6.9 of the WLEP. As the site is not identified on the Key Sites Map, Sheet KYS_003, and is not in the B1 Neighbourhood zone, or the B2 Local Centre zone, the provisions do not now apply. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Whether the site is contaminated, is to be remediated, or is suitable in its current state, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, are matters that I accept were required of the consent authority, or the Court on appeal, in considering the original consent, and are not relevant to my consideration of the modification application. The statement from a qualified designer is provided 1. Section 102 of the EPA Regulation requires a modification application to be accompanied by a statement by a qualified designer, defined at Sch 7 as a person registered as an architect under the Architects Act 2003. 2. The statement, prepared by Mr Graham Jago (Arch Reg No 4926) and dated 13 February 2023, is in a complying form and includes those matters set out at s 102(2) of the EPA Regulation. State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 1. I am satisfied that the modification application is accompanied by a BASIX certificate (Cert No. 1249883M_03 dated 8 February 2023), prepared by LC Consulting Engineers 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. 3. The Court notes that: 1. Waverley Council, as the relevant consent authority, has agreed, under s113(1) of the EPA Regulation, to the Applicant amending modification application DA-82/2016/E in accordance with the plans and reports listed below: 1. Amended Architectural Plans prepared by Nordon Jago Architects (Job Number MHO00121-22053). Plan description Drawing/Revision Dated Cover Sheet DA.000 / Revision O 17.01.23 Site Plan DA.001 / Revision K 15.11.22 Level 0 (Basement) plan DA.002 / Revision U 17.01.23 Level 1 (GF) plan DA.003 / Revision V 16.01.23 Level 2 plan DA.004 / Revision O 30.11.22 Level 3 plan DA.005 / Revision M 15.11.22 Level 4 plan DA.006 / Revision M 15.11.22 Level 5 plan DA.007 / Revision M 15.11.22 Roof plan DA.008 / Revision L 15.11.22 South elevation (George Street) DA.009 / Revision K 15.11.22 West elevation (Old South Head Rd) DA.010 / Revision J 15.11.22 East elevation DA.011 / Revision I 07.10.22 North elevation DA.012 / Revision L 17.01.23 Section – Long DA.013 / Revision L 16.01.23 Section – Short DA.014 / Revision J 16.01.23 Section – Long (through 2.02 Home Theatre) DA.60 / Revision B 30.11.22 Section – Short (through 2.02 Home Theatre) DA.061 / Revision B 30.11.22 1. BASIX No. 1249883M_03 Certificate prepared by LC Consulting Engineers dated 8 February 2023. 2. BASIX Stamped Architectural Plans (Ref No. 006777920) dated 8 February 2023. 3. NatHERS Certificate No. 0006777920 prepared by Lance Chen dated 8 February 2023. 4. Response Letter for Traffic Elements – On-site Parking Facility prepared by YRC dated 19 January 2023. 5. Design Verification Statement prepared by Graham Jago dated 13 February 2023. 6. Letter of offer to enter Voluntary Planning Agreement prepared by MH Development One Pty Ltd. 1. The Applicant has filed the amended application with the Court on 13 February 2023. 2. The parties propose to enter into a planning agreement, in accordance with s 7.4 of the EPA Act and the Waverley Planning Agreement Policy 2014 (Amendment No. 4) , a matter that is the subject of Condition 13 and 13A of the conditions of consent at Annexure B. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. DA-82/2016 is modified in the terms in Annexure A. 3. Development Consent No. DA-82/2016 as modified by the Court is Annexure B. T Horton Commissioner of the Court Annexure A (235358, pdf) Annexure B (361459, 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: 22 February 2023