Land and Environment Court New South Wales Medium Neutral Citation: 128 Hewlett Street Pty Ltd v Waverley Council [2023] NSWLEC 1504 Hearing dates: Conciliation conference held 7 August 2023. Final agreement filed 8 August 2023 Date of orders: 06 September 2023 Decision date: 06 September 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-304/2022 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The Applicant's written request, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the WLEP, is upheld. (4) The Applicant's written request, pursuant to clause 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the WLEP, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA-304/2022 (as amended) for demolition of the existing residential apartment building and construction of multi-dwelling housing comprising nine dwellings, with basement parking and swimming pools at 122-128 Hewlett Street, Bronte, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: NSW Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: 128 Hewlett Street Pty Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/282417 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by 128 Hewlett Street Pty Limited (the Applicant), against the deemed refusal of Development Application DA-304/2022 (the DA) by Waverley Council (the Respondent). At the time of its lodgment, the DA sought consent for the demolition of the existing residential apartment building, Torrens title subdivision of the site and the construction of ten dwellings including 6 semi-detached and 4 detached dwellings with car parking, landscaping and swimming pools at 122-128 Hewlett Street, Bronte (the site). 2. The matter was listed for hearing before me over two days on 7 and 8 August 2023, however during the site viewing at the commencement of the hearing, the parties indicated to me the prospect of an agreement being reached. I granted a short adjournment to allow the parties to finalise a formal agreement, which was filed with the Court on 8 August 2023. 3. Under the Chief Judge's delegation, the Registrar re-allocated the matter as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) and listed the matter before me on the afternoon of 7 August 2023. 4. 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. 5. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of exceedance of the floor space ratio (FSR) and height of building development standards, the inconsistency of the proposed Torrens title subdivision with the prevailing cadastral pattern in the area, building setbacks, streetscape character, tree removal and overshadowing amongst others. 6. The amended DA now proposes nine dwellings and no longer includes the proposed Torrens title subdivision of the site. Further, the final amendments include measures to increase building setbacks and building separation, reduce building bulk and scale, mitigate against cross viewing and visual privacy, and increase landscaping provision. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. 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. 10. The DA was publicly notified from 1 to 23 August 2022. Eleven submissions were received by the Respondent raising issues including concerns for excessive building height and FSR, inadequate front and side boundary setbacks, bulk and scale, overshadowing and privacy impacts, view affectation, tree loss and incompatibility with the local streetscape. 11. At the site view on 7 August 2023 and prior to the commencement of the conciliation conference, the Court benefited from a number of oral submissions made by residents. These residents raised concerns similar to those raised during the formal DA notification period, including building bulk arising from inadequate setbacks, tree loss, and view affectation. 12. In the case of view loss specifically, detailed view studies prepared by the Applicant served to demonstrate to concerned residents that the final amended DA generally results in a net improvement to views available from neighbouring properties. 13. Accordingly, the parties agree that the amended DA satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 14. 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 R3 Medium Density Residential and the proposed development - characterised as multi-dwelling housing - is permissible with consent. 15. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the proposed development is consistent with the R3 Medium Density Residential zone objectives, which include providing for the housing needs of the community within a medium density residential environment and to provide a variety of housing types within a medium density residential environment. 16. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3 Height of buildings which establishes a maximum height of building development standard of 9.5m for the site, and cl 4.4 Floor space ratio which establishes a FSR development standard of 0.6:1 for the site. 17. In such an instance, cl 4.6(3) of the WLEP requires consideration of written requests from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 18. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied the Applicant's written requests have adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 19. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 20. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard set out at cl 4.3. 21. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 9.5m for the following reasons: 1. The amended DA proposes a maximum building height of 12.95m, exceeding the development standard by 3.45m and representing a variation of approximately 36%. 2. The exceedance of the height of building development standard is due partly to the existing excavated basement level, which creates an existing ground level for the site which is lower than the site's typical, or natural, ground level. 3. The amended DA otherwise complies with the height of building development standard when measured from the site's natural ground level. 4. The existing buildings on the site currently exceed the height limit and the final amended DA is proposed to be lower in height when compared to these existing buildings. 5. The front building elevation presents a complying building height to Hewlett Street, with upper floor levels set behind landscape planters. 6. The amended DA will remain consistent with the streetscape within its immediate context, including its relationship to recently approved development along Hewlett Street. 7. The amended DA will be consistent with the desired future character of the area. 8. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment and to provide a variety of housing types within a medium density residential environment. I am satisfied the amended DA meets these objectives. 9. The objectives of cl 4.3 of the WLEP include to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, and to maintain satisfactory solar access to existing buildings and public areas. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request. 2. Similarly, as required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the FSR development standard set out at cl 4.4. 3. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the FSR development standard of 0.6:1 for the following reasons: 1. The amended DA proposes a FSR of 0.78:1, exceeding the development standard by 0.18:1 and representing a variation of approximately 30%. 2. Despite the exceedance of the FSR development standard, the amended DA will be compatible within the streetscape of the immediate urban context. 3. The amended DA will provide a built form which is consistent with the desired future character of the area. 4. The amended DA is configured in a manner which preserves an acceptable environmental amenity for neighbouring properties and the public domain. 5. The existing residential apartment building also exceeds the FSR development standard and the amended DA reduces the apparent building scale and bulk when compared to the existing development. 6. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment and to provide a variety of housing types within a medium density residential environment. I am satisfied the amended DA meets these objectives. 7. The objectives of cl 4.4 of the WLEP include to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, and to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request. 2. 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. Accordingly, cl 5.10 is not enlivened by the amended DA. 3. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP, Acid sulfate soils, the site is identified as being within a Class 5 Acid sulfate soils area. The amended DA is unlikely to encounter acid sulfate soils in this location and accordingly no acid sulfate soils management plan is required. 4. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP, Earthworks. The Applicant has provided a Geotechnical Report prepared by JK Geotechnics. This report sets out excavation methods to limit effects on nearby residents and developments. Agreed conditions of consent reflecting the report's recommendations are imposed. 5. 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. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination and no change of use is proposed. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 6. 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 1310501M_04, dated 4 August 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate. 7. 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. 8. The Court notes that: 1. Pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, the Respondent has approved the Applicant amending the DA. 2. The Applicant has filed the amended DA with the Court on 20 July 2023. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-304/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. 3. The Applicant's written request, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the WLEP, is upheld. 4. The Applicant's written request, pursuant to clause 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the WLEP, is upheld. 5. The appeal is upheld. 6. Consent is granted to Development Application DA-304/2022 (as amended) for demolition of the existing residential apartment building and construction of multi-dwelling housing comprising 9 dwellings, with basement parking and swimming pools at 122-128 Hewlett Street, Bronte, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court 282417.22 Annexure A 282417.22 Architectural Plans Part 1 282417.22 Architectural Plans Part 2 ********** 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: 07 September 2023