Land and Environment Court New South Wales Medium Neutral Citation: Common Office Pty Ltd v Waverley Council [2023] NSWLEC 1625 Hearing dates: Conciliation conference on 18-19 October 2023 Date of orders: 19 October 2023 Decision date: 19 October 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent DA-462/2021 relating to the demolition of existing structures and erection of dual occupancy dwellings at land identified as 12 Princess Street, Rose Bay, being Lot 12 in Section B in DP 4185 is modified in the terms set out in Annexure 'A'. (3) Development consent DA-462/2021, as modified by the Court and described as DA-462/2021/A, is set out in Annexure 'B'. (4) The applicants are to file the plans and documents referred at Order (2) above within 7 days of the judgment being delivered. Catchwords: APPEAL – modification application – dual occupancy dwelling – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Common Office Pty Ltd (First Applicant) Ricky Rosettenstein (Second Applicant) Joshua Dov Wisemam (Third Applicant) Waverley Council (Respondent) Representation: Counsel: J Reid (Applicants) C Rose (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2023/109830 Publication restriction: Nil JUDGMENT The proceedings 1. These proceedings arise following the Council's refusal of an application (DA462/2021/A) to modify a development consent DA462/2021 (original consent) which approved a dual occupancy on land located at 12 Princess Street, Rose Bay. 2. The matter was listed for a hearing under s 34AA(1)(a)(i) of the Land and Environment Court Act 1979 (LEC Act) and I was the presiding officer. During the s34 mandatory conciliation conference held after the site view the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them. 3. The decision involves the following modifications to the application: * extension of the eastern dwelling basement by 15.8m2, and amendments to the design of the internal stair; * in both dwellings – reconfiguration of the layout of the kitchen, together with a 2.22m extension to the northern internal courtyard void, a 3m extension to the rear to facilitate larger living rooms, relocation of the rear terraces and awnings to the north and changes to openings; * at the first floor level of each dwelling – a southern extension to bedroom 3, reconfiguration of the internal layout resulting in larger bathrooms and an additional bedroom to replace the study, a 3.93m extension to the northern void, a splayed northern extension (with chamfered edge) to the master bedrooms, extension towards the eastern and western boundaries to increase the size of bedroom 1 and master bedrooms ensuite in order to provide a separate shower and toilet area, changes to openings and associated extensions to the roof, addition of privacy screens and a green roof above the living room roof; * relocation of the swimming pools and associated paving to the rear boundary, removal of Tree 3 (Weeping Bottlebrush), and amendments to landscaping and deletion of rear swimming pool decks. 1. Under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties' agreed decision if that decision is one that the Court could have made in the proper exercise of its functions. 2. The jurisdictional preconditions that must be satisfied before the proposed orders can be made are addressed in a joint jurisdictional submission filed with the executed s34 agreement. After review I accept on the evidence before me that there is no jurisdictional impediment to orders as agreed by the parties. In that regard, I note the following matters. Environmental Planning and Assessment Act 1979 (EPA Act) 1. The modification application was made pursuant to s 4.55(2) of the EPA Act. 2. In accord with s 4.55(2)(a) I am satisfied on the evidence before me (see Tab 5, Class 1 application, SEE; and the Council's assessment report Part 2.1 Tab 3, Council's Bundle), that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. 3. The application was notified in accordance with the Council's Community Development Participation and Consultation Plan from 8 September 2022 to 22 September 2022 and five submissions were received (Council's bundle Tabs 9 and 10). The parties submit and I accept that the most recent amendments have satisfactorily addressed all relevant objections to the application. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. As required by the BASIX SEPP an updated BASIX certificate (1241426M_03) addressing the amended application was filed with the Court on 19 October 2023. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) – Ch 2 1. The parties are satisfied that the BC SEPP has been considered and satisfactorily addressed in both the original report and the addendum report. 2. The modification application seeks consent for removal of a bottlebrush bush at the rear of the site. The landscape plan will be supplemented with additional trees in accordance with the agreed conditions. Conditions of consent 1. The conditions sought by the Council are agreed to by the applicants. Conclusion 1. For the above reasons I find that the parties' decision is within power as required by s 34(3) of the LEC Act. I now dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. That Waverley Council, as the relevant consent authority, has approved, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, to the applicants amending modification application no. DA-462/2021/A to rely on the documents listed below: Amended Architectural Plans Plan description Plan No and rev Prepared by Dated Site Plan DA 100 [09] Common Office 18.10.23 Basement Plan DA 200 [09] Common Office 18.10.23 Ground Floor Plan DA 201 [09] Common Office 18.10.23 First Floor Plan DA 202 [09] Common Office 18.10.23 Roof Plan DA 203 [09] Common Office 18.10.23 Elevations North/South DA 300 [09] Common Office 18.10.23 Elevations East/West DA 301 [09] Common Office 18.10.23 Fences DA 302 [09] Common Office 18.10.23 Sections AA and BB DA 400 [09] Common Office 18.10.23 Section C01 and C02 DA 401 [09] Common Office 18.10.23 Waste Management Plan DA 502 [09] Common Office 18.10.23 Courtyard DA 602 [09] Common Office 18.10.23 Site Plan DA 100 [09] Common Office 18.10.23 Basement Plan DA 200 [09] Common Office 18.10.23 Supporting Documentation BASIX Certificate No. 1241426M_03 Certificate No.: 1241426M_03 Max Brightwell 17.10.23 1. The Court orders: 1. The appeal is upheld. 2. Development consent DA-462/2021 relating to the demolition of existing structures and erection of dual occupancy dwellings at land identified as 12 Princess Street, Rose Bay, being Lot 12 in Section B in DP 4185 is modified in the terms set out in Annexure 'A'. 3. Development consent DA-462/2021, as modified by the Court and described as DA-462/2021/A, is set out in Annexure 'B'. 4. The applicants are to file the plans and documents referred at Order (2) above within 7 days of the judgment being delivered. ………………… S Dixon Senior Commissioner of the Court Annexure A (196146, pdf) Annexure B (295643, 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: 23 October 2023