Land and Environment Court New South Wales Medium Neutral Citation: Newman v Waverley Council [2023] NSWLEC 1157 Hearing dates: Conciliation Conference held 13 March 2023, final agreement filed 13 March 2023 Date of orders: 04 April 2023 Decision date: 04 April 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-345/2021 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) The appeal is upheld. (3) Consent is granted to Development Application DA-345/2021 (as amended) for demolition of existing structures and construction of a two-storey dwelling and associated works at 49 Military Road, Dover Heights, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – dwelling house – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 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 (Resilience and Hazards) 2021, ss 2.11, 2.12, 2.13, 4.6 Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 5.10, 5.21, 6.1, 6.2, 6.15 Texts Cited: Waverley Local Government Area Flood Study 2020 Category: Principal judgment Parties: Georgina Newman (Applicant) Waverley Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/309734 Publication restriction: Nil 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 refusal of Development Application DA-345/2021 (the DA) by Waverley Council (the Respondent). The DA sought consent for the demolition of an existing dwelling and construction of new two-storey dwelling with integrated basement garage, roof top terrace, and swimming pool at 49 Military Road, Dover Heights (the site). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 March 2023. I presided over the conciliation conference. 3. 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. 4. Of particular note, the DA has been amended to resolve the contentions initially raised by the Respondent, which related to issues of exceedance of the height of building development standard, exceedance of the floor space ratio (FSR) development standard, excessive wall height, overshadowing, view impacts and streetscape character, amongst other contentions. 5. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. 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. 8. The DA was publicly notified from 10 September to 24 September 2021. Six submissions were received by the Respondent raising issues including non‑compliance with the height of building control, non-compliance with the FSR control, concerns for building form and scale, overshadowing and reduction in natural light for affected neighbours, visual and acoustic privacy, and view impacts. 9. The parties agree that the amended DA now satisfactorily resolves the matters raised in these public submissions. Specifically, the setbacks evident in the amended DA have been increased to reduce off-site impacts of overshadowing, privacy and view loss, and the proposal now complies with building height and FSR controls. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 10. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential, and the proposed development - characterised as a dwelling house - is permissible with consent. 11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the proposed development is consistent with the R2 Low Density Residential zone objectives, which include providing for the housing needs of the community within a low-density residential environment, ensuring dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time, and to improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. 12. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, Demolition requires development consent, the amended DA seeks consent for demolition of the existing dwelling house on the site. 13. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA. 14. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP, Heritage conservation, the site is not identified as a heritage item, nor is it situated within a heritage conservation area. 15. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP, Flood planning, the site is not land identified as flood affected under the Respondent's endorsed Waverley Local Government Area Flood Study 2020. 16. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP, Acid sulfate soils, the site is not mapped within any Acid Sulfate Soils area. 17. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the WLEP, Earthworks, the amended DA proposes earthworks, including excavation to allow construction of the basement garage. The matters set out at cl 6.2(3) have been assessed by the Respondent and I am satisfied they have been appropriately considered. Agreed conditions of consent reflecting the matters set out at cl 6.2(3) are imposed. 18. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP, Stormwater management, the amended DA must demonstrate consistency with those matters set out at cl 6.15(3). The amended DA has been assessed by the Respondent and I am satisfied the development meets these stormwater management criteria. 19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. 20. The parties agree, and I am satisfied, that the subject site is located in a Coastal Use Area pursuant to s 2.11 of SEPP Resilience and Hazards. The site is not located on the foreshore, beach, nor adjacent to a headland or any rock platform. The proposed development has been designed and sited to avoid or minimise any impacts of overshadowing, wind funnelling, loss of views from public places to the foreshore, the visual amenity and scenic qualities of the coast and headlands, Aboriginal cultural heritage, and any cultural and built environment heritage. 21. The parties agree, and I am satisfied, that the subject site is located in a coastal zone pursuant to s 2.12 of SEPP Resilience and Hazards. I am satisfied the proposed development will not result in any increased risk of coastal hazards on the site. 22. The parties agree, and I am satisfied, that the subject site is located in a coastal zone pursuant to s 2.13 of SEPP Resilience and Hazards. I am satisfied there is no relevant coastal management program or coastal zone management plan which applies to the Site. 23. The parties agree, and I am satisfied, that pursuant to s 4.6 of SEPP Resilience and Hazards, the site has historically been used for residential purposes not associated with contamination and that no change of use is proposed. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. 24. 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 (number 1214091S_02) dated 8 March 2023 has been provided by the Applicant fulfilling the requirements of SEPP BASIX. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 25. 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. 26. 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 agreement of the Respondent. 2. The Applicant has filed the amended DA with the Court on 13 March 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-345/2021 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. 2. The appeal is upheld. 3. Consent is granted to Development Application DA-345/2021 (as amended) for demolition of existing structures and construction of a two-storey dwelling and associated works at 49 Military Road, Dover Heights, subject to the conditions of consent at Annexure A. M Pullinger Acting 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: 04 April 2023