Portier Family Pty Ltd v Waverley Council [2024] NSWLEC 1156

Land and Environment Court New South Wales

Medium Neutral Citation: Portier Family Pty Ltd v Waverley Council [2024] NSWLEC 1156 Hearing dates: Conciliation conference held 27 October, 17 November, 11 December 2023, 29 January, 12 and 27 February, and 5 and 11 March 2024 Date of orders: 05 April 2024 Decision date: 05 April 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-44/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed amount of $18,000 within 28 days of the date of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld. (4) The appeal is upheld. (5) Development consent is granted to Development Application DA-44/2023 (as amended) for demolition of the existing building and construction of a three-storey shop-top housing development comprising four residential units, two retail tenancies and integrated garage parking at 112 O'Brien Street, Bondi Beach, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – shop-top housing – existing use rights – cl 4.6 written request – floor space ratio – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.65, 4.67, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38, 163, 164 State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Housing) 2021, ss 145, 147, Sch 9 Waverley Local Environmental Plan 1985 Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.15 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: Portier Family Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent)