Land and Environment Court New South Wales Medium Neutral Citation: MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272 Hearing dates: Conciliation conference on 11 May 2023 Date of orders: 02 June 2023 Decision date: 02 June 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No. 246/2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, payable within 28 days of such agreement or assessment. (2) The appeal is upheld. (3) Development Application No. 246/2022 for the substantial demolition (retention of a portion of boundary walls and façade) and alterations and additions to the existing residential flat building, including construction of a basement and associated site and landscaping works, at 58 Campbell Parade, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – partial demolition of existing residential flat building and construction of a residential flat building – contravention of the height of buildings development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 4.65, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 Waverley Local Environmental Plan 2012, cll 4.3, 4.6 Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: MHN Design Union Pty Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/228308 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 246/2022 for the substantial demolition of the existing residential flat building and alterations and additions, including construction of a basement and associated site and landscaping works (the proposal), at 58 Campbell Parade, Bondi Beach (the site), by Waverley Council (the Council). 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 11 May 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. 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 development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended Plans 1. The Council, as the consent authority, consented to the amendment of the application under s 37(1) of the Environmental Planning and Assessment Regulation 2021 on 8 May 2023. The Applicant filed the amended application with the Court on 11 May 2023. Planning framework 1. At the time of lodgement of the application, the site was zoned B4 Mixed Use pursuant to the Waverley Local Environmental Plan 2012 (LEP 2012). On 26 April 2023, the LEP was amended (as a result of the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 and Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022) and the Site is now zoned E1 Local Centre. 2. Residential Flat Buildings are expressly prohibited in the E1 zone. The existing use is a residential flat building within the meaning of existing use under s 4.65 of the EPA Act. I accept the agreed documentary evidence provided by the Applicant's heritage expert that the site has been occupied by a part four and part five storey brick residential flat building since approximately 1938 and has continued to be used for that purpose since that time. Contravention of the height of buildings development standard 1. The proposal has a maximum height of 17.55m at the rear roof parapet and 15.81m to the top of the lift overrun. The height of buildings development standard for the site is 15m. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2012, are: (a) to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (b) to accommodate taller buildings on land in Zone E2 Commercial Centre in the Bondi Junction Centre and establish a transition in scale between adjoining zones to protect local amenity, (c) to maintain satisfactory solar access to existing buildings and public areas, (d) to establish building heights that are consistent with the desired future character of the locality. 1. The Applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by GSA Planning and dated May 2023. 2. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: "These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b))." 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding the numerical non-compliance with the standard. The uppermost level of the proposal has been setback from the existing street elevation and retains view corridors for existing development around the site. The portion of the building envelope above the height of buildings development standard does not affect any windows of surrounding development from achieving 3 hours of solar access on the winter solstice. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature. "Environmental planning grounds" is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the EPA Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of buildings development standard as a justified response to the redistributing of the compliant gross floor area in a manner that is consistent with the built context of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. For the reasons set out by the Applicant in the written request, I am satisfied that the proposal is consistent with the objectives of the development standard and the zone objectives. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 11 May 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No. 246/2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, payable within 28 days of such agreement or assessment. 2. The appeal is upheld. 3. Development Application No. 246/2022 for the substantial demolition (retention of a portion of boundary walls and façade) and alterations and additions to the existing residential flat building, including construction of a basement and associated site and landscaping works, at 58 Campbell Parade, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court 228308.22 Annexure A (444972, 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: 02 June 2023