Land and Environment Court New South Wales Medium Neutral Citation: Marcus v Waverley Council [2024] NSWLEC 1148 Hearing dates: Conciliation conference on 15, 20 and 23 February 2024; 5, 12 and 19 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent no. DA-324/2018 is modified in the terms set out in Annexure A. (3) Development consent no. DA-324/2018 as modified is Annexure B. Catchwords: APPEAL – modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.15 Texts Cited: Waverley Council, Community Engagement Strategy 2023 Category: Principal judgment Parties: Evette Marcus (Applicant) Waverley Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/239137 Publication restriction: Nil JUDGMENT 1. These proceedings arise following Waverley Council's refusal of an application DA-324/2018/B (as amended), made pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the modification of the development consent DA-324/2018 (original consent) applying to 6 Scott Street, Bronte (site). 2. The consent the subject of the modification application was granted on 9 July 2019 and approved alterations and additions to a residential flat development including internal reconfiguration, associated strata subdivision and various external modifications. Conditions 2 (a) was imposed on the consent to delete the proposed attic level additions including the associated dormer windows rear balcony and stairs. 3. The application proposed the removal condition 2(a) from development consent DA-324/2018 to allow for habitable space with dormers at attic level and alterations to the roof form. 4. 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 first held on 15 February 2024. I presided over the conciliation conference. 5. During the conciliation process the Council approved, under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the applicant amending its modification application DA-324/2018/B to rely upon the following architectural plans and documents (collectively, the amended application): Reference Description Author/Drawn Date DA00.01 Site Analysis, Revision F Archi Spectrum 15 March 2024 DA01.01 Existing Ground Floor Plan, Revision F DA01.02 Approved Ground Floor Plan, Revision F DA01.03 Existing First Floor Plan, Revision F DA01.04 Approved First Floor Plan, Revision F DA01.05 Existing Second Floor Plan, Revision F DA01.06 Approved Second Floor Plan, Revision F DA01.07 Proposed Attic Floor Plan, Revision F DA01.08 Proposed Site & Roof Plan, Revision F DA02.01 Proposed North & South Elevations, Revision F DA02.02 Proposed East Elevation, Revision F DA02.03 Proposed West Elevation, Revision F DA03.01 Proposed Section A, Revision F DA03.02 Proposed Section B, Revision F DA03.03 Proposed Section C, Revision F DA04.01 Area Calculations, Revision F DA05.01 Shadow Diagrams Winter Solstice - 9am, Revision F DA05.02 Shadow Diagrams Winter Solstice -10am, Revision F DA05.03 Shadow Diagrams Winter Solstice - 11am, Revision F DA05.04 Shadow Diagram Winter Solstice - 12pm, Revision F DA05.05 Shadow Diagrams Winter Solstice - 1pm, Revision F DA05.06 Shadow Diagrams Winter Solstice - 2pm, Revision F DA05.07 Shadow Diagram Winter Solstice - 3pm, Revision F DA05.08 Sun Eye Diagrams Existing, Revision F DA05.09 Sun Eye Diagrams Proposed, Revision F DA07.01 External Finishes Schedule, Revision F DA07.03 Attic Height Compliance, Revision F 1. The applicant filed the amended application with the Court on 18 March 2024. 2. The Council, being satisfied that the amended application addressed the contentions in its Statement of Facts and Contentions, has executed a s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to it. This decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the original consent. 3. 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. In that regard I note the following matters. Owner's consent 1. The applicant in these proceedings is Evette Marcus. The site is owned by Bronte Flats Pty Ltd as trustee for the Bronte Flat Trust. Owner's consent was provided by Evette Marcus, the director of the Bronte Flat Trust to carry out development described in the modification application. Section 4.55 of the EPA Act 1. Section 4.55(2) provides that: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Substantially the same: s 4.55(2)(a) 1. The Statement of Environmental Effects (SEE) accompanying the modification application has assessed the elements and impacts of the proposed development from a quantitative and qualitative perspective and determined that the development is substantially the same development as the development for which consent was originally granted (before that consent was modified). On that basis, the parties are agreed, and I accept that s 4.55(2)(a) is satisfied. Consultation with the relevant Minister, public authority, or approval body: s 4.55(2)(b) 1. No consultation is required with a Minister, public authority, or approval body pursuant to s 4.55(2)(b). Notification to previous submitters: s 4.55(2)(c) 1. The modification application was notified and advertised from 21 February 2023 until 9 March 2023 in accordance with cl 10, Sch 1 of the EPA Act, and sections 4 and 5 of the Waverley Community Engagement Strategy 2023 (CES). Three (3) submissions were received during the notification period. Consideration of submissions: s 4.55(2)(d) 1. The submitters raised a number of issues but relevantly: * non-compliant height and FSR * bulk and scale * no provision for off-street parking * streetscape impacts * non-conforming use * lack of storage provision. 1. The Council submits and I accept that the relevant merit concerns have been satisfactorily addressed by the amended application. Consideration of s 4.55(3) 1. In respect of the reasons given by the consent authority for the grant of the Consent, the parties submit: 1. the original consent required the deletion of the proposed new attic level addition including the associated dormer windows, rear balcony and stairs. The deletion of these elements was sought during the assessment of the development application to which Consent was granted, for reasons related to streetscape presentation and height impacts, and 2. as set out below, with the amendments made to the modification application, the Council is satisfied that the objectives of cll 4.3 and 4.4 of the Waverley Local Environmental Plan 2012 (WLEP) are achieved. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. On 1 October 2023, State Environmental Planning Policy (Sustainable Buildings) 2022 commenced and repealed the BASIX SEPP. 2. However, s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 provides that: (1) This Policy does not apply to the following— … (e) an application for modification of a development consent under the Act, section 4.55 or 4.56 submitted on the NSW planning portal but not finally determined before 1 October 2023, … 1. Under the BASIX SEPP and the EPA Regulation, the proposed development is BASIX-affected development. The modification application was accompanied by an updated BASIX certificate, A322012_03. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) 1. Chapter 4 of the RH SEPP deals with Remediation of Land. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the site is contaminated. 2. As outlined in the SEE prepared by aSquare Planning Pty Ltd and dated 12 December 2022 the site has been historically used for residential purposes since its original subdivision. There is no evidence of any potentially contaminating uses occurring at the site. 3. The parties submit and I accept that it is unlikely that there is any contamination on this site. No further consideration is therefore required. The relevant provisions of Ch 4 of the RH SEPP are therefore satisfied. WLEP 1. The WLEP is the relevant local environmental planning instrument that applies to the site. 2. The site is zoned R2 Low Density Residential under WLEP. Residential flat buildings are a prohibited use in the R2 Zone. 3. However, the site has the benefit of existing use rights as established and confirmed as part of the original assessment of DA-324/2018. Approval of the current development application maintains the current lawful use as a residential flat building. 4. The WLEP provides development standards for both height and FSR. 5. Clause 4.3 of the WLEP prescribes a maximum building height of 8.5m for the site. The existing height to the roof ridge of the building as 12m. The height to the proposed dormer window of the attic addition will be 11.42m. When regard is had to the objectives of cl 4.3, the parties submit and I accept that: 1. The proposed development preserves the environmental amenity of neighbouring properties (cl 4.3(1)(a)), 2. The proposed development maintains satisfactory solar access to existing buildings and public areas (cl 4.3(1)(c)), 3. The proposed development establishes a building height that is consistent with the desired future character of the locality (cl 4.3(1)(d)). 1. Clause 4.4 of the WLEP deals with floor space ratio (FSR) and specifies a FSR of 0.5:1 for the site. The modification application proposes a FSR of 1.09:1. The additional floor space is contained within the roof space with the discernible elements limited to two side facing dormer windows set back from the street frontage and one rear-facing dormer window. When regard is had to the objectives of cl 4.4, the parties submit and I accept that: 1. The proposed development provides an appropriate correlation between maximum building heights and density controls (cl 4.4(1)(b)), 2. The proposed development is compatible with the bulk and scale of the desired future character of the locality (cl 4.4(1)(c)), 3. The proposed development preserves the environmental amenity of neighbouring properties and the locality (cl 4.4(1)(d)). In this regard, the Council is satisfied that the proposed development does not have unacceptable overshadowing impacts, the dormer windows are at a height where visual privacy is maintained to side properties, and privacy measures have been added to ensure that the rear dormer window will not overlook rear properties. 1. The site is also not heritage listed nor is it in a conservation area and is also not adjoining or adjacent to any heritage items. 2. The site is not located within a flood planning area. 3. The site is not identified by the WLEP as being land that is affected by acid sulfate soils. 4. Clause 6.2 of the WLEP requires the consent authority to ensure that any earthworks and associated groundwater dewatering will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The proposed development application does not involve excavation. 5. Clause 6.4 of the WLEP contains controls that apply to land identified as 'Biodiversity' on the 'Terrestrial Biodiversity Map' made pursuant to the WLEP. The land is not located on the Terrestrial Biodiversity Map. 6. Clause 6.15 of the WLEP requires the consent authority to be satisfied that the development: (a) is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact. 1. The approved application will not alter the existing stormwater regime (and does not alter the building footprint or landscaped area or topography generally) and will not increase the volume of stormwater and consequently the requirements of cl 6.15, to the extent that they may be seen as applicable, are not offended by the application. Conclusion and orders 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 orders: 1. The appeal is upheld. 2. Development consent no. DA-324/2018 is modified in the terms set out in Annexure A. 3. Development consent no. DA-324/2018 as modified is Annexure B. …………………… S Dixon Senior Commissioner of the Court Annexure A (145184, pdf) Annexure B (220209, pdf) ********** Amendments 03 April 2024 - Correction to typographical error at [3]. 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: 03 April 2024