Land and Environment Court New South Wales Medium Neutral Citation: Bland v Waverley Council [2023] NSWLEC 1771 Hearing dates: Conciliation Conference 12 September, 13 November 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application No DA‑334/2022, as amended, for alterations and additions to the existing dwelling including a new first floor addition on land identified as Lot 4 in Deposited Plan 9638 and known as 100 Francis Street, Bondi Beach NSW 2026, subject to conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – alterations and additions – dwelling house – 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 34 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Waverley Local Environmental Plan 2012, cll 4.3, 4.4A, 4.6, 6.2 Texts Cited: Waverley Development Control Plan 2012 Waverley Community Engagement Strategy Category: Principal judgment Parties: Martin Stanley Bland (First Applicant) Josefina Santos Bland (Second Applicant) Waverley Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicants) C Rose (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicants) Wilshire Webb Staunton Beatie (Respondent) File Number(s): 2023/94754 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Waverley Council (the Council) of DA-334/2022 (the Development Application) for alterations and additions to the existing dwelling, including a new first floor addition (Proposed Development), on land identified as Lot 4 in Deposited Plan 9638 and known as 100 Francis Street, Bondi Beach NSW 2026 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development, as amended, with conditions. 4. The parties agree that: 1. The Amended DA does not fundamentally alter the Proposal such that the Proposal cannot be considered an amendment to the DA, or would otherwise require the lodgement of a new DA; and 2. The Proposal remains described as alterations and additions to the existing dwelling including a new first floor addition; and 3. The Amended DA wholly addresses all contentions of the Respondent's Statement of Facts and Contentions (SOFAC), for the reasons set out below. 1. On 4 October 2023 and 13 November 2023, the Applicant served amended plans, an Amended Clause 4.6 Request and an amended BASIX certificate (Amended Material) on the Respondent. The Amended Material implemented the terms of the in-principle agreement reached at the Conciliation Conference. 2. On 13 November 2023, the Respondent informed the Applicants that the Amended Material was satisfactory. 3. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court on 13 November 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council's SOFAC filed in the proceedings. 5. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters that apply. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The DA was accompanied by a BASIX certificate and the Applicant has provided an amended BASIX certificate as part of the Amended DA. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, has been considered by the parties and is not engaged as the Site has a long known history of residential use and the Site is deemed suitable to accommodate the Proposed Development. Waverley Local Environmental Plan 2012 1. The Site is zoned R2 Low Density Residential (R2 Zone) pursuant to the Waverley Local Environment Plan 2012 (WLEP) and demolition and dwelling houses are permissible with consent. The parties agree that the Proposed Development, as amended is consistent with the zone objectives. 2. Pursuant to cl 4.3(2) and the Height of Buildings Map of the LEP, a maximum height of buildings development standard of 8.5 metres (Height Standard) applies to development at the Site. In this regard, the parties agree that the Proposal, as amended by the Amended DA: 1. Comprises a maximum height of 10.43 metres as measured from the ground level existing (taken to be the level of the garage/basement); 2. Results in a maximum variation to the Height Standard of 1.93 metres. 1. The Applicant prepared the Amended Clause 4.6 Request, which seeks to justify the above variation to the Height Standard. The parties agree and the Court accepts that the Amended Clause 4.6 Request demonstrates that: 1. Compliance with the Height Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the LEP), for the reasons set out in the Amended Clause 4.6 Request; and 2. There are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the LEP), for the reasons set out in the Amended Clause 4.6 Request. 1. As a result, the precondition under cl 4.6(4)(a)(i) of the LEP, for the consent authority (and the Court in relation to an appeal) to be satisfied that the Applicants have provided a written request that adequately addresses the matters required to be demonstrated by cl 4.6(3) of the LEP, has been satisfied. 2. Further, the Respondent is satisfied and the Court accepts that in relation to: 1. Clause 4.6(4)(a)(ii) of the LEP, the Proposal will be in the public interest because it is consistent with the objectives of the Height Standard and the Zone (for the reasons set out in the Amended Clause 4.6 Request); and 2. Clause 4.6(4)(b) of the LEP, in relation to concurrence from the Secretary (for reasons set out in the Amended Clause 4.6 Request). 1. Pursuant to cl 4.4A(b) of the WLEP, a maximum floor space ratio development standard of 0.76:1 applies to development at the Site. The parties agree that the Amended DA provides a floor space ratio of 0.75:1 and complies with the FSR standard. 2. The Amended DA includes minor excavation at the existing garage/basement level that is defined as earthworks under the WLEP. Pursuant to cl 6.2(3) of the WLEP the parties have considered the matters of cl 6.2(3)(a)-(h) of the WLEP and agree that they are suitably addressed by the Amended DA. Waverley Development Control Plan 2012, Amendment 9 (DCP) 1. The parties have considered the DCP in relation to the Amended DA. The Respondent is satisfied and the Court accepts that the Amended DA is acceptable in relation to the applicable objectives and controls of the DCP and that consent can be granted, subject to conditions. Notification of DA and Public Interest Considerations 1. The Respondent originally notified the DA in accordance with its Community Engagement Strategy for a period of 14 days between 24 August 2022 and 7 September 2022 (Original Notification). 2. Two submissions in response to the Original Notification were received by the Respondent, objecting to the DA (Submissions). 3. The issues raised in the Submissions are summarised as: 1. Overshadowing and accuracy of shadow diagrams; 2. Visual bulk and scale; 3. Reduced side setback; 4. Incompatible front setback; and 5. Compatibility with streetscape. 1. The author of one of the Submissions addressed the Court at the s 34 Conference site view. 2. Following the submission of the Amended Material by the Applicants, the Respondent undertook a further notification and received one further submission from the same person who addressed the Court at the site view (Further Submission). 3. The issues raised in the Further Submission are summarised as: 1. Overshadowing; 2. Non-compliances with the Height Standard and the wall height control of the DCP; 3. Floor space ratio and basement areas. 1. The Respondent, having considered the Amended Material and the Further Submission, is satisfied that the impacts of the Amended DA are acceptable in the circumstances and that the issues raised in the Further Submission have been addressed to an extent that is reasonable and justified in accordance with the relevant objectives and controls of the DCP. 2. The Respondent has also imposed conditions in relation to the basement which have been accepted by the Applicants. 3. The Court is satisfied that the resident objectors have been accorded procedural fairness and an opportunity to be heard. Conclusion: 1. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 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. 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. Notations: 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has agreed to the Applicant amending the Class 1 Application pursuant to subss38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 to rely on the following amended materials. Document Description Prepared By Date Architectural plans: a) A01 revision T – Title Page b) A02 revision T – BASIX Certificate c) A03 revision T – Area Diagrams d) A04 revision T – Site Analysis e) A05 revision T – Ex. Garage / Basement f) A06 revision T – Ex. Ground Plan g) A07 revision T – Garage / Basement Demolition Plan h) A08 revision T – Ground Floor Demolition Plan i) A09 revision T – Site & Roof Plan j) A10 revision T – Proposed Basement k) A11 revision T – Proposed Ground Floor l) A12 revision T – Proposed First Floor m) A13 revision T – Elevations n) A14 revision T – Elevations o) A15 revision T – Elevations p) A16 revision T – Elevations q) A17 revision T – Section r) A18 revision T – Section s) A19 revision T – Section t) A20 revision T – Section u) A21 revision T – 3D Height Diagram SandBox Studio Pty Ltd 27 October 2023 v) A22 revision T – 3D Height Diagram w) A23 revision T – Concept Landscape Plan x) A24 revision T – Concept Stormwater Plan y) A25 revision T – Shadow Diagram-21 June 900h z) A26 revision T – Shadow Diagram-21 June 1000h aa) A27 revision T – Shadow Diagram-21 June 1100h ab) A28 revision T – Shadow Diagram-21 June 1200h ac) A29 revision T – Shadow Diagram-21 June 1300h ad) A30 revision T – Shadow Diagram-21 June 1400h ae) A31 revision T – Shadow Diagram-21 June 1500h af) A32 revision T – 3D Shadow Diagram-21 June 900h ag) A33 revision T – 3D Shadow Diagram-21 June 1000h ah) A34 revision T – 3D Shadow Diagram-21 June 1100h ai) A35 revision T – 3D Shadow Diagram-21 June 1200h aj) A36 revision T – 3D Shadow Diagram-21 June 1300h ak) A37 revision T – 3D Shadow Diagram-21 June 1400h al) A38 revision T – 3D Shadow Diagram-21 June 1500h am) A39 revision T – Streetscape Analysis an) A40 revision T – Streetscape Analysis ao) A41 revision T – 3D Height Diagram-Ground Level Ex. ap) A42 revision T – 3D Height Diagram-Ground Level Ex. BASIX Certificate number A468478_03 SandBox Studio Pty Ltd 27 October 2023 Clause 4.6 Variation Request, revision 5 Paro Consulting 13 November 2023 1. The Applicants filed the amended materials with the Court (and with the consent of the Respondent) on 13 November 2023; 2. The written request made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 in relation to a variation to the height of building development standard (of cl 4.3 of the Waverley Local Environmental Plan 2012), prepared by Paro Consulting and dated October 2023, is upheld as agreed by the parties. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application No DA‑334/2022, as amended, for alterations and additions to the existing dwelling including a new first floor addition on land identified as Lot 4 in Deposited Plan 9638 and known as 100 Francis Street, Bondi Beach NSW 2026, subject to conditions at Annexure A. L Byrne 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: 19 December 2023