Land and Environment Court New South Wales Medium Neutral Citation: Burrell v Waverley Council [2024] NSWLEC 1032 Hearing dates: Conciliation conference held on 24 and 25 January 2024 Date of orders: 01 February 2024 Decision date: 01 February 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The applicant is directed to file the amendments to Development Application DA 57/2023 that arise from the s 34 conciliation conference within 7 days of these orders. (2) The applicant's written request, prepared by Lockrey Planning and Development Solutions Pty Ltd, dated 30 August 2023, and made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP 2012) to vary the height development standard in cl 4.3 of the WLEP 2012 is upheld. (3) The appeal is upheld. (4) Development Application DA-57/2023, as amended, seeking demolition and construction of a three-storey dwelling with basement garage and swimming pool on Lot 2 Deposited Plan 73583, also known as 25 St Thomas Street, Bronte is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – construction of a new dwelling – breach in height development standard – written request for variation in development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 27, 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, s 4.6 Waverley Local Environmental Plan 2012, cll 2.3, 4.3, 4.6, 6.2 Texts Cited: Waverley Community Development Participation and Consultation Plan Waverley Development Control Plan 2012 Category: Principal judgment Parties: Andrew John Burrell (Applicant) Waverley Council (Respondent) Representation: Counsel: A Knox (Solicitor)(Applicant) S Patterson (Solicitor)(Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2023/337197 Publication restriction: Nil Judgment COMMISSIONER: This is an appeal against the refusal of Development Application DA-57/2023 by Waverley Council (the Council) seeking demolition of existing structures, and construction of a three-storey dwelling, with basement parking and a swimming pool on Lot 2 Deposited Plan 73583, also known as 25 St Thomas Street, Bronte (hereafter the site). Background 1. Development Application DA-57/2023 (the DA) was lodged with Council on 18 March 2023, with 16 written submissions received during the notification period. 2. The DA was submitted to the Waverley Local Planning Panel (WLPP), and after review, the DA was refused, with the determination made on 14 September 2023. 3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view, and then held in person. Two oral submissions from residents, relating to adjoining residences, were made at the start of the conciliation. The issues raised by these residents was consistent with the written submissions provided during the notification period, and generally relate to view, excavation, solar amenity and bulk. 5. The Council agreed for the applicant to amend the plans that support and amend the application, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the adjoining residents and objectors have been considered in the merit assessment. The Council confirms it has delegation from the WLPP to enter into the agreement. 7. Pursuant to s 34(3) of the LEC Act, I must 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. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA-57/2023, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied: 1. Waverley Local Environmental Plan 2012 (WLEP): 1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone. 2. The amended application is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the WLEP, although does not comply with cl 4.3. The contention relating to excavation has been addressed by amendments to the DA, which considers the objectives of cl 6.2 of the WLEP. 3. The height development standard described in cl 4.3 of the WLEP requires buildings to be no higher than 8.5m. The DA seeks a maximum building height of 9.0m, 0.5m above the height development standard. The amended application therefore relies on a cl 4.6 written request, seeking a variation of the (non-compliant) height development standard, made pursuant to cl 4.6 of the WLEP. 4. The cl 4.6 written request that supports the DA explains that the non-compliance of the height standard does not result in a development that is incompatible with the character of the surrounding area, nor results in adverse amenity to adjoining properties. The land slopes towards the north and the proposed development responds to the existing slope of the land. The height variation sought, will not be perceptibly viewed in the streetscape and does not result in an uncharacteristic bulk/scale. 5. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the WLEP and the height development standard objectives, described in cl 4.3. 6. The Court must be satisfied, to grant consent to the application, that the requirements set out in cl 4.6 of the WLEP are addressed. 7. Having reviewed the cl 4.6 written request and evidence of the experts, I am satisfied that the written request seeking variation of the height development standard sufficiently addresses the requirements of cl 4.6 of the WLEP. It describes relevant environmental planning grounds to justify the non-compliance in the standard and strict compliance of the standard is both unreasonable and unnecessary. The proposed building form responds appropriately to the slope of the land, reflecting other recent developments in the streetscape. The proposed development is consistent with the objectives of the zone (R2), in addition to the height (cl 4.3) standard objectives. 8. The breach in the height development standard will not cause undue concern to (existing and future) adjoining residents, the streetscape or future residents of the site. The height breach generally relates to the front portion of the roof form. I accept the explanation in the cl 4.6 written request and agree with the expert evidence, that considers t any view loss to 27 St Thomas Street is satisfactory, being limited to a small portion of the sky as sighted from a bedroom window and across a side boundary. There is no evidence of adverse solar impact to living room windows or to the private open space on adjoining properties resulting from the breach in building height. Any solar impact to the adjoining residence is considered minimal and reasonable, limited to a bedroom and non-living room windows at 27 St Thomas Street. 9. The proposed development is assessed as being in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development. 10. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cl 4.3 development standard should be granted. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX): 1. Pursuant to the requirements established in s 27 of the EPA Reg, a BASIX Certificate (1355135S) issued on 24 January 2024 is relevant to the proposed development, as amended, and is prepared consistent with the SEPP BASIX. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed. 1. Waverley Development Control Plan 2012 (WDCP): 1. The relevant requirements of the WDCP are generally complied with based on the amended plans, supporting documents to the DA and the conditions of consent. 2. The original application was publicly notified in accordance with the WDCP and the Waverley Community Development Participation and Consultation Plan. The 16 submissions received during the notification period have been considered in Council's merit assessment of the DA, and where appropriate, issues raised have been addressed. 3. With regards to the geotechnical stability of the proposed development, as raised by adjoining residents, the DA relies on a Geotechnical Investigation, prepared by White Geotechnical Group, and dated 5 May 2023. The amended plans for the basement (requiring excavation) demonstrates that the required setbacks described in the WDCP and the objectives of cl 6.2 of the WLEP are addressed. 4. With regards to the potential view loss, as raised by the resident at 27 St Thomas Street, after visual inspection from this property and consideration of the proposed development, the experts agree that there is no view loss to iconic features, including Bronte Beach and the headland, and that any loss of view from the bedroom with its balcony is limited to a small portion of the sky, therefore reasonable and satisfactory. 5. With regards to the potential for solar impact to windows and private open space of adjoining properties, after review of the amended DA, the experts agree that any solar impact is limited to non-living room windows and a small portion of a rear private open space, which is not significant. 6. The Council agrees that the contentions that relate to the WDCP are resolved by amendments to the DA and the provision of documents that support the DA. The proposed development is assessed as not causing unsatisfactory amenity impacts to adjoining properties or the streetscape. 1. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application. All proposed works are explained to the Court as being within the site. Grant of consent 1. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-57/2023 should be determined by the grant of consent. 3. As the parties' agreement 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. 4. The Court notes that: 1. The Waverley Council, as the relevant consent authority, has agreed pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA-57/2023, as follows: 1. architectural plans, prepared by Clinton Murray Architects, dated 24 January 2024 and marked Revision F, as described below, A001 Excavation and Demo Plan A002 Basement Plan A003 Ground Floor Plan A004 First Floor Plan A005 Roof Plan A006 Stormwater Concept Plan A007 Elevations North and East A008 Elevations South and West A009 Sections A & B A010 Landscape Plan A016 Excavation Plan 1. BASIX Certificate 1355135S, dated 24 January 2024. 1. The Court orders that: 1. The applicant is directed to file the amendments to Development Application DA‑57/2023 that arise from the s 34 conciliation conference within 7 days of these orders. 2. The applicant's written request, prepared by Lockrey Planning and Development Solutions Pty Ltd, dated 30 August 2023, and made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP 2012) to vary the height development standard in cl 4.3 of the WLEP 2012 is upheld. 3. The appeal is upheld. 4. Development Application DA-57/2023, as amended, seeking demolition and construction of a three-storey dwelling with basement garage and swimming pool on Lot 2 Deposited Plan 73583, also known as 25 St Thomas Street, Bronte is determined by the grant of consent, and subject to the conditions set out in Annexure A. S Bish 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: 01 February 2024