Land and Environment Court New South Wales Medium Neutral Citation: Smith v Waverley Council [2023] NSWLEC 1341 Hearing dates: Conciliation Conference on 1 June 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The Applicants' written request prepared by GSA planning dated 19 May 2023 pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, to vary the floor space ratio development standard in cl 4.4 is upheld. (2) The appeal is upheld. (3) Development Consent is granted to Development Application DA-490/2022 for the demolition of the existing dwelling and construction of a two-storey, side-by-side attached dual occupancy above lower ground parking, each with three bedrooms, a study, a rear swimming pool and landscaping, at 15 Lord Howe Street, Dover Heights, subject to the conditions in accordance with Annexure "A". Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Waverley Local Environmental Plan 2012, cll 2.2, 4.3, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2 Texts Cited: Waverley Council LGA Flood Study 2021 Waverley Council, Community Engagement Strategy, 2021 Waverley Development Control Plan 2012 Category: Principal judgment Parties: Morris Brian Smith (First Applicant) Lynne Smith (Second Applicant) Waverley Municipal Council (Respondent) Representation: Counsel: A Galesso SC (Applicant) J Ede (Solicitor)(Respondent) Solicitors: Baron + Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/387498 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA-490/2022 (the DA) for the demolition of the existing dwelling and construction of a two-storey, side-by-side attached dual occupancy above lower ground parking, each with three bedrooms, a study, a rear swimming pool and landscaping, at 15 Lord Howe Street, Dover Heights. 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 1 June 2023. I presided over the conciliation conference, which commenced with a site inspection. 3. The revised plans (dated 19 May 2023) constituting an amendment to the DA were submitted by the applicant and these revised plans formed the basis of the discussion at the conciliation conference. 4. One objector (from an adjoining property) attended the site with her representative (Mr Hayman), who provided submissions on her behalf. 5. At the conciliation conference following the on-site view, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 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. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows: 1. the Development Application was lodged by the registered proprietors of the subject site who provided owner's consent; 2. the Development Application was notified by the respondent for a period of 21 days, between 10 and 31 January 2022, as required under the provisions of Waverley Council Community Engagement Strategy 2021. One submission was received in response to that notification. 3. in relation to the provisions of the Waverley Local Environmental Plan 2012 (WLEP): 1. the subject site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.2 of the WLEP; and 1. the proposed dual occupancy is permissible with consent in the R2 Low Density Residential zone within which the subject site is located; 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out; 1. pursuant to cl 4.4A of the WLEP in relation to the floor space ratio (FSR) a development standard of 0.5:1 is applicable to development of the subject site; and 1. the Amended Application has reduced the floor space from the original proposal from 343.43 m2 (17% variation) to 335.19 m2 (14.5% variation); 2. the Applicant has submitted an amended written request pursuant to the provisions of cl 4.6 of the WLEP, prepared by GSA Planning and dated 19 May 2023, seeking to vary the applicable FSR development standard; 1. the parties submit, and I am satisfied, that the applicant's amended cl 4.6 written request is well founded and that the variation to the FSR development standard is acceptable noting that: 1. the provisions of cl 4.4A of WLEP provide a maximum FSR of 0.5:1 for development on the subject site. The breach in the FSR development standard arises from the proposed basement carparking (in lieu of providing ground level carparking on the Subject Site); 2. I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of WLEP because the proposed development achieves the objectives of the FSR development standard notwithstanding the FSR exceedance for the reasons provided within the Applicant's written request, which I adopt; 3. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of WLEP, for the following reasons: 1. the design, form and scale of the of the proposed dwellings will ensure that the final built form is complementary to, and compatible with, the prevailing design of new dwellings in the locality; 2. the proposed variation will appear visually consistent with the streetscape when viewed from the front, side and rear elevations; 3. the proposed additional floor space is accommodated below the maximum building height, with setbacks proposed to be compliant (and greater than the existing dwelling), and includes a landscaping area that exceeds required controls. 1. approval of the proposed development will be in the public interest for the reasons provided above (at [3(c)(ii)] and [3(c)(iii)]) and because the proposed development is consistent with the objectives for the FSR development standard and for development within the R2 zoning of the subject site for reasons provided within the Applicant's written request, which I also adopt; 1. the provisions of cl 5.10 of the WLEP concern heritage conservation. The subject site is not identified as being an item of heritage significance, is not located within the vicinity of an item of local heritage significance and is not within a heritage conservation area; 2. the provisions of cl 5.21 of the WLEP concern flood planning, and the subject site is not located on land identified as flood affected under the Council endorsed Waverley LGA Flood Study 2021. 3. the provisions of cl 6.1 of the WLEP concern acid sulfate soils, and the subject site is not classified as having acid sulfate soils; 4. the provisions of cl 6.2 of the WLEP concern earthworks, and the DA proposes earthworks/excavation to provide for lower-level car parking. The extent of these earthworks has been the subject of investigation as part of the documentation for the DA. Council's proposed conditions of consent include a condition related to geotechnical risk management. 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant's amended Development Application is accompanied by an updated BASIX certificate (Certificate No 1292203M_04 dated 29 May 2023) which is consistent with the amended application. NaTHERS certificates have also been provided by the applicant. 2. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) the parties agree that s 4.6 of the Resilience SEPP is satisfied as the subject site has been used historically for residential purposes, and there is no proposed change of use. 3. the parties submit, and I am satisfied, that the DA as amended has considered and addressed the following relevant provisions in Waverley Development Control Plan 2012 (the DCP): 1. Part B: General Provisions; and 2. Part C2: Low Density Residential Development. 1. Having considered the advice of the parties provided above at [8], I am satisfied that: 1. the applicants' Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; 3. approval of the proposed development is in the public interest. 1. Further, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The Court notes that: 1. Waverley Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No DA-490/2022 to rely upon the following documents: Plan Number and Revision Plan description Plan Date Date received by Council DA 100 Rev 05 Site Plan and Site Analysis 19 May 2023 19 May 2023 DA 102 Rev 05 Tree Management Plan 19 May 2023 19 May 2023 DA 200 Rev 05 Lower Ground Floor Plan 19 May 2023 19 May 2023 DA 201 Rev 05 Upper Ground Floor Plan 19 May 2023 19 May 2023 DA 202 Rev 05 First Floor Plan 19 May 2023 19 May 2023 DA 203 Rev 05 Roof Plan 19 May 2023 19 May 2023 DA 300 Rev 05 East-West Elevations 19 May 2023 19 May 2023 DA 301 Rev 05 North-South Elevations 19 May 2023 19 May 2023 DA 302 Rev 05 South Elevation 19 May 2023 19 May 2023 DA 304 Rev 05 Boundary Elevations 19 May 2023 19 May 2023 DA 400 Rev 05 Long Sections 1 and 2 19 May 2023 19 May 2023 DA 401 Rev 05 Short Section 2 19 May 2023 19 May 2023 DA 402 Rev 05 Pool Long Sections 19 May 2023 19 May 2023 DA 403 Rev 05 Pool Short Sections 19 May 2023 19 May 2023 1. BASIX Certificate No 1292203M_04 prepared by Thermperform dated 29 May 2023 and received by Council on 30 May 2023. 2. NATHERS Class 1 Summary Certificate No T0MLDNLFAL prepared by Thermperform dated 29 May 2023 and received by Council on 30 May 2023. 3. NATHERS Certificate No CPQOIW5ZHC-12 prepared by Thermperform dated 29 May 2023 and received by Council on 30 May 2023. 4. NATHERS Certificate No 9E38K3WBXV-08 prepared by Thermperform dated 29 May 2023 and received by Council on 30 May 2023. 5. Schedule of external finishes and colours DA 600 Rev 05 dated 19 May 2023 and received by Council on 1 May 2023. (Collectively, "the amended application"). 1. the amended application was filed with the Court on 1 June 2023. 1. The Court orders: 1. The applicants' written request prepared by GSA planning dated 19 May 2023 pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, to vary the floor space ratio development standard in cl 4.4 is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application DA‑490/2022 for the demolition of the existing dwelling and construction of a two-storey, side-by-side attached dual occupancy above lower ground parking, each with three bedrooms, a study, a rear swimming pool and landscaping, at 15 Lord Howe Street Dover Heights, subject to the conditions in accordance with Annexure "A". G Kullen 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 July 2023