Land and Environment Court New South Wales Medium Neutral Citation: Pillion v Waverley Council [2023] NSWLEC 1660 Hearing dates: Conciliation conference on 26 October 2023 Date of orders: 07 November 2023 Decision date: 07 November 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA-359/2022 for alterations and additions to the existing dwelling including ground floor additions to the dwelling, façade alterations and internal modifications at 4 Wolaroi Crescent, Tamarama is determined by the grant of consent subject to conditions of consent contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to dwelling in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2, 6.15 Cases Cited: Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 Category: Principal judgment Parties: Ray Pillion (Applicant) Waverley Council (Respondent) Representation: Counsel: J Farrell (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/123813 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicant in these proceedings seeks consent for alterations and additions to an existing dwelling house at 4 Wolaroi Crescent, Tamarama that includes the following: 1. Addition of a vehicle turn table within the existing garage. 2. Reduction to the opening of the garage door to allow for separate pedestrian entry. 3. Internal changes to the ground floor level to reduce the number of bedrooms from 3 small bedrooms to 2 larger guestrooms with ensuites. 4. Facade improvements including new front terrace, covered and planted entry, updated timber feature panelling and new planting. 5. Remedial works to doors and openings/terraces to resolve water ingress issues. 6. Extension of the floor area at the ground floor level to accommodate a larger bedroom, with robe, and larger lounge room. 7. Fill in the void over the lower ground/garage below to increase the area of the ground floor terrace. 8. Extension of the first floor terrace to the side and street boundaries. 1. Development application No DA-359/2022 (the DA) was lodged on 26 August 2022, and was notified to residents in the area between 22 September – 6 October 2022, in response to which no submissions were received. 2. On 14 December 2022, the Waverley Local Planning Panel refused the DA on behalf of Waverley Council (the Respondent). 3. On 18 April 2023, the Applicant filed an appeal in Class 1 of the Court's jurisdiction, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The appeal was listed for mandatory conciliation on 26 October 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 5. The Applicant amended the proposal prior to the conciliation conference, which had the effect of resolving the contentions. As a consequence, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was submitted to the Court on 26 October 2023. 6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [34]. 8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 9. The site is located within the R2 Low Density Residential zone according to the Waverley Local Environmental Plan 2012 (WLEP), in which dwelling house development is permitted where consistent with the objectives of the zone, that are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. • To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. The proposed development exceeds the Floor Space Ratio standard 1. The height of the existing building is proposed to be retained. A portion of the existing roof structure exceeds the height standard of 8.5m at cl 4.3 of the WLEP, however, as shown in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174, at [60(3)], as the DA as now amended is not development for a building that exceeds the maximum height shown for the land, the development standard in cl 4.3 of the WLEP does not apply when determining the DA as now amended. 2. The proposal also exceeds the Floor Space Ratio (FSR) standard of 0.7:1 that applies to the site by virtue of cl 4.4A of the WLEP. 3. The FSR of the existing dwelling house is 0.89:1, and the FSR of the proposed development is 1.01:1. The Applicant relies upon a written request, prepared in accordance with cl 4.6 of the WLEP by GSA Planning dated October 2023 (the written request). 4. The written request states that the alterations and additions that give rise to additional floor space are limited to the lower ground floor and ground floor where the additional floor space is within the footprint of an existing balcony, such that no additional bulk or scale results from the proposal. Likewise, no aspect of the proposal contravenes the height standard beyond the existing contravention, as stated earlier. 5. The written request asserts that compliance with the FSR standard is unnecessary or unreasonable because the proposal achieves the objectives of the FSR standard notwithstanding the non-compliance. 6. The relevant objectives are the objectives of the FSR standard at cl 4.4(1) of the WLEP, that in the following terms: 4.4 Floor space ratio … (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality. 1. I accept the reasons put forward in the written request as to the manner in which the objectives of cl 4.4 are achieved, summarised as follows: 1. An appropriate correlation is achieved between maximum building heights and density controls by the additional floor space being wholly contained within the existing building height. A lower FSR would not reduce the external envelope as the additional floor space on the lower ground floor is not visible from the street, and the additional floor space on the ground floor is contained within the envelope formed by the balcony above on the first floor. 2. The bulk and scale of the proposal is compatible with the desired future character of the locality when recently approved development on Wolaroi Crescent is considered in the manner set out in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112, and where such development comparably exceeds the height and FSR provisions of the WLEP. In the circumstances of this proposal, the exceedance is contained within the existing bulk and scale which maintains the predominating front setback alignment with adjoining properties at 2 and 6 Wolaroi Crescent. 3. The amenity of the neighbouring properties and locality is preserved by limiting the additional floor space to the lower ground and ground floors where no additional bulk results that would otherwise impact privacy, solar access or views that are all forms of amenity. 1. I also accept the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the FSR standard because the additional floor space is largely not perceived from the public domain, because the proposal is visually compatible in the context of other development in Wolaroi Crescent, and achieves the relevant objectives of the FSR standard. 2. As such I am satisfied the written request adequately addresses those matters required to be demonstrated at cl 4.6(3) of the WLEP. 3. I am also satisfied the proposed development is in the public interest because it is consistent with the objectives of the FSR standard, and of the R2 zone which seeks housing appropriate to a low density residential environment, and does not propose to alter the existing car parking provision on the site. 4. The parties agree, as do I, that the contravention of the FSR standard does not raise any matter of significance for State or regional environmental planning pursuant to cl 4.6(5) of the WLEP, and so there are no grounds on which the written request should not be upheld. Other provisions of the Waverley Local Environmental Plan 2012 1. The site is located within soil identified by the relevant map at cl 6.1(2) of the WLEP as Class 5 Acid Sulfate Soils (ASS), and is within 500m of Class 4 ASS, the development does not propose to disturb one tonne of soils, and due to that fact, will not lower the water table. As such, consent is not required under cl 6.1 of the WLEP. 2. Relatedly, I have considered the matters at cl 6.2(3) of the WLEP that deal with earthworks. As there are no earthworks proposed on the site, I conclude those matters at subcll 6.2(3)(a), (b), (c), (e), (f) and (h) are not a relevant consideration, and those matters at subcll 6.2(3)(d) and (g) to be acceptable. 3. In the case of subcl 6.2(3)(d), I consider the proposed development to be so limited as to have no effect in the amenity or structural integrity of adjoining properties. 4. In the case of subcl 6.2(3)(g), I note the proposal relies upon an existing stormwater drainage system, on-site detention and disposal that was the subject of the grant of consent in 2011, and in respect of which the Court has been provided with the relevant documents. 5. In turn, it is those documents relating to the existing stormwater drainage system, and the architectural plans prepared by Studio Haptic that also satisfy me that the development does not diminish the water permeable surfaces on the land, includes on site detention of stormwater and avoids significant adverse impact of stormwater runoff in accordance with cl 6.15(3) of the WLEP. State Environmental Planning Policy (Sustainable Buildings) 2022 1. A BASIX Certificate (Certificate No A467338_03 dated 26 October 2023) accompanies the application, prepared by Studio Haptic Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The site is identified as land being within the coastal use area, pursuant to s 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 2. The parties have considered whether the proposed development is likely to cause an adverse impact of a kind at s 2.11(1)(a) of the Resilience and Hazards SEPP. On the basis of the limited visibility of the additional floor space and other associated aspects and features of the development, I am satisfied of those matters about which the Court must be satisfied at s 2.11(1)(b) of the Resilience and Hazards SEPP. In particular, I accept the development is of a nature that is designed to avoid an adverse impact referred to in s 2.11(1)(a) of the Resilience and Hazards SEPP. 3. I have also considered whether the site is contaminated pursuant to s 4.6 of Resilience and Hazards SEPP. Having regard to the nature of the works that are proposed to give effect to the development consent, I consider the site suitable for the purpose for which the development is proposed. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. The Respondent, Waverley Council, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-359/2022 to rely on the documents listed below: Amended Architectural Plans Plan description Plan No and rev Prepared by Dated Site Plan and Site Analysis Plan A100 Rev H Studio Haptic 19.10.23 Floorplans A101 Rev H Studio Haptic 19.10.23 Proposed Ground Floor - setback A102 Rev G Studio Haptic 19.10.23 FSR Calculations A103 Rev G Studio Haptic 19.10.23 Existing & Proposed Comparative Plans A105 Rev D Studio Haptic 19.10.23 Streetscape Analysis A107 Rev D Studio Haptic 19.10.23 Roof/Water Mgmt Site Plan A110 Rev G Studio Haptic 19.10.23 Landscape Plan & Soil & Water Management Plan A111 Rev E Studio Haptic 19.10.23 Elevations A200 Rev H Studio Haptic 19.10.23 Existing elevations A201 Rev D Studio Haptic 19.10.23 Elevation & Sections A300 Rev H Studio Haptic 19.10.23 Existing Elevation & Sections A301 Rev D Studio Haptic 19.10.23 Sight line plans A350 Rev D Studio Haptic 19.10.23 Shadow Diagrams A400 Rev G Studio Haptic 19.10.23 Shadow Diagrams A401 Rev G Studio Haptic 19.10.23 Shadow Diagrams A402 Rev D Studio Haptic 19.10.23 Supporting Documentation Clause 4.6 Request Job No. 23114 GSA Planning 26 Oct 2023 BASIX Certificate No. A467338 Studio Haptic Pty Ltd 26.10. 2023 1. The Applicant has filed amended plans and other documents listed above on 26 October 2023. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA-359/2022 for alterations and additions to the existing dwelling including ground floor additions to the dwelling, façade alterations and internal modifications at 4 Wolaroi Crescent, Tamarama is determined by the grant of consent subject to conditions of consent contained in Annexure A. T Horton 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: 07 November 2023