Kimberley Co Pty Ltd v Waverley Council [2023] NSWLEC 1418

Land and Environment Court New South Wales

Medium Neutral Citation: Kimberley Co Pty Ltd v Waverley Council [2023] NSWLEC 1418 Hearing dates: 12 July 2023 Date of orders: 02 August 2023 Decision date: 02 August 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of this amendment, as agreed or assessed. (2) The written request pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 (WLEP), seeking a variation of cl 4.4 – Floor space ratio of WLEP, prepared by GSA Planning dated June 2023 is upheld. (3) The appeal is upheld. (4) Development Application DA-291/2022 for the demolition of the existing structures, excavation and construction of a four-storey residential flat building development including four residential apartments above a basement level car park, strata subdivision, associated landscaping and a swimming pool at rear, at the properties known as 27 and 29 Kimberley Street, Vaucluse being Lot 1 in DP 560890 and Lot 2 in DP 1056298, is determined by the grant of consent, subject to the conditions of consent at Annexure A. (5) The exhibits are returned with the exception of Exhibit 1, A and B. Catchwords: DEVELOPMENT APPLICATION – demolition of existing building and construction of a four-storey residential flat building – strata subdivision – contentions resolved – consent orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, cll 4, 28, 30 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Waverley Local Environmental Plan 2012, cll 4.1, 4.3, 4.4, 4.6, 5.10, 6.2, 6.14, 6.15, Sch 5, Pt 2 Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Karavellas v Sutherland Shire Council [2004] NSWLEC 251 RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Texts Cited: Department of Planning and Environment, Apartment Design Guide, 2015 Department of Planning, Industry and Environment, Planning Circular PS 20-002, 2020 Land and Environment Court of New South Wales, Practice Note Class 1 Development Appeals, 2018 Standards Australia/Standards New Zealand, AS 2890.1:2004 Parking Facilities Part 1: Off-street car parking, 2004 Waverley Development Control Plan 2012 Category: Principal judgment Parties: Kimberley Co Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Stafford (Applicant) M Staunton (Respondent)