Land and Environment Court New South Wales Medium Neutral Citation: Levitt v Waverley Council [2024] NSWLEC 1316 Hearing dates: Conciliation Conference on 2 May 2024 Date of orders: 12 June 2024 Decision date: 12 June 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The appeal is upheld. (2) The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for height of building control contained within cl 4.3 thereof, as prepared by Navon Planning dated April 2024, is upheld. (3) The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for the floor space ratio control contained within cl 4.4 thereof, as prepared by Navon Planning dated April 2024, is upheld. (4) Development consent is granted to development application No. DA-301/2022 for demolition of an existing dual occupancy and construction of a new attached dual occupancy including basement car parking, swimming pools, tree removal, landscaping and strata subdivision at 68 Gilbert Street, Dover Heights 2030, legally known as CP in SP 75491 and Lots 3 and 4 in SP 83312, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – clause 4.6 variations - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7 Land and Environment Court Act 1979, ss 34, 34AA, 39 Strata Schemes Development Act 2015 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Former Ch 8, Former Ch 10 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 2.2, 2.7, 4.1, 4.3, 4.4, 4.6, 5.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.15 Texts Cited: Waverley Community Development Participation and Consultation Plan 2019 Waverley Development Control Plan 2012 Waverley Development Control Plan 2012 – Amendment No. 9 Category: Principal judgment Parties: A Levitt (First Applicant) G Di Bartolomeo (Second Applicant) Waverley Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) A Rutherford (Respondent) Solicitor: Hones Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/333672 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council of development application DA-301/2022 (the DA) for the demolition of an existing dual occupancy and construction of a new attached dual occupancy including basement car parking, swimming pools, tree removal, landscaping and strata subdivision at 68 Gilbert Street, Dover Heights 2030 (the site). 2. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 May 2024. I presided over the conciliation conference. The site view was vacated as the parties had reached agreement on amendments to the DA. The Respondent confirmed that there were no submissions received when the amended plans were re-notified to objectors to the original DA. 3. Prior to the conciliation conference, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement with Annexure A (conditions of consent), was filed with the Court on 30 April 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. 4. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions. 5. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 22 November 2023. A SOFAC in Reply prepared by the Applicant was filed with the Court on 15 February 2024. 6. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent, especially in relation to building height and floor space in the proposed development. Amendments to the proposed development include: 1. Substantial reduction in excavation volume and reduction in basement floor area; 2. Changes to the finished floor levels to achieve a reduction in the height of the building (HoB); 3. North setback increased to address neighbour's view loss and south setback increased to preserve view corridor; and 4. Deletion of clerestory window on roof, and lowered roof level to further address concerns about loss of views. 1. The Respondent requested that the Applicant provide the amended plans to the submitters. No response was received, and no submitters wished to speak at the conciliation conference. 2. However, a variation in the development standards for building height and floor space ratio (FSR) under the Waverley Local Environmental Plan 2012 (the LEP) is still required for the proposed development as amended and is addressed at [17-18] below. 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 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows. Jurisdictional Prerequisites Owner's consent 1. Owner's written consent was provided in the lodgement of the DA. Community Participation (Sch 1, Div 2, subs 7(1) EPA Act) 1. The Respondent advises that the DA was notified in accordance with the Waverley Community Development Participation and Consultation Plan 2019 from 10 August 2022 to 28 August 2022. The Respondent received four submissions during the notification period. The amended plans were provided to the submitters by the Applicant, and no responses were received by the Respondent. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act. Waverley Local Environmental Plan 2012 1. The LEP applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential (R2 zone) pursuant to cl 2.2 of the LEP; and 1. The proposed development for the purposes of a dual occupancy is permissible with development consent in the R2 zone; 2. The DA also seeks consent for the demolition of the existing two-storey dual occupancy and associate structures on the site, as permissible pursuant to cl 2.7 of the LEP; 3. The parties submit that the proposed development complies with the objectives of the R2 zone; 4. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. The proposed development does not include Torrens Title Subdivision. Strata Subdivision is proposed. The parties advise that cl 4.1 of the LEP does not apply to the proposed development, as the site is proposed to be subdivided by the registration of a strata plan of subdivision under the Strata Schemes Development Act 2015. 2. Pursuant to cl 4.3 of the LEP, the maximum HoB on the site is 8.5m; and 1. the parties advise that the proposed development results in a maximum building height of 8.881m which does not comply with cl 4.3; 2. The Applicant submitted a cl 4.6 written request for the amended DA prepared by Navon Planning dated April 2024. The parties have advised that the Court can be satisfied that compliance with the height development standard in cl 4.3 of the LEP is unreasonable or unnecessary in the circumstances that there are sufficient environmental planning grounds to permit the variation, and that the development is in the public interest because it achieves the objectives of the R2 zone in the LEP; 3. I am satisfied that the Applicant's cl 4.6 written request is well founded and that the variation to the maximum HoB standard is acceptable noting that: 1. The provisions of cl 4.3(2) of the LEP provide a maximum HoB of 8.5 metres for development on the subject site. The proposed variation to the HoB standard is 4.5% (381mm), which only relates to parts of the front awning of the proposed building. This departure mirrors the existing building's height and is located towards the centre of the proposed awning. The majority of the proposed building complies with the HoB standard; 2. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the HoB development standard, notwithstanding the HoB exceedance for the reasons provided within the Applicant's written request, which I adopt; 3. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons: 1. the proposed height variation is limited to the front awning only of the proposed development and is similar to the height exceedance of the existing building on the site. It is also similar to the height of other dwellings which have been approved in the vicinity of the site; 2. The proposed development responds to the topography of the land, which slopes steeply (7.43m) from the rear of the site to the street; 3. An alternative design to reduce the proposed development's floor levels (and below those of the existing building on the site) would require substantial excavation; and 4. The proposed height variation will allow the proposed development to incorporate basement garages, enabling landscaping in the front setback area, and minimising the dominance of the garages on the streetscape. 1. Approval of the proposed development will be in the public interest for the reasons provided above, and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R2 zoning of the subject site for reasons provided within the Applicant's written request, which I also adopt. 1. Pursuant to cl 4.4 of the LEP, the maximum FSR for the site is 0.5:1; and 1. The parties advise that the proposed development has a FSR of 0.65:1 (a variation of 30.5%) which does not comply with cl 4.4; 2. The Applicant submitted a cl 4.6 written request for the amended DA prepared by Navon Planning dated April 2024. The parties have advised that the Court can be satisfied that compliance with the FSR development standard in cl 4.4 of the LEP is unreasonable or unnecessary in the circumstances that there are sufficient environmental planning grounds to permit the variation, and that the development is in the public interest because it achieves the objectives of the R2 zone in the LEP; 3. I am satisfied that the Applicant's cl 4.6 written request is well founded and that the variation to the maximum FSR standard is acceptable noting that: 1. The proposed building's FSR includes the existing void beneath the building as this area is more than 1.4m above the existing ground level; 2. The proposed development provides a building footprint significantly less than the requirements of the Waverley Development Control Plan 2012 (the DCP) and significantly more landscaping area than that specified by the DCP; 3. Setbacks provided by the proposed development are more generous than those specified by the DCP; 4. The proposed development has a slightly increased footprint when compared to the existing building on the site; 5. I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the FSR development standard, notwithstanding the FSR exceedance for the reasons provided within the Applicant's written request, which I adopt; 6. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons: 1. Other dwellings have been approved in the vicinity of the site where similar variations to the FSR development standard have been allowed; 2. As noted above in [17(3)(c)], the site slopes steeply from the rear of the site to the street. Floor space in the proposed development on the site has been managed by a stepped design over four levels; and 3. The proposed development is compatible with the surrounding streetscape and preserves or improves solar access and views for adjoining properties. 1. Approval of the proposed development will be in the public interest for the reasons provided above, and because the proposed development is consistent with the objectives for the FSR development standard and for development within the R2 zoning of the subject site for reasons provided within the Applicant's written request, which I also adopt. 1. The parties advise that for the purposes of cl 5.6 of the LEP, the amended proposal does not contain an architectural roof feature. 2. Clause 5.10 of the LEP is concerned with heritage matters. The parties advise that the site is not a heritage item and is not located in a heritage conservation area, although the site is in the vicinity of the Caffyn Park Landscape heritage conservation area. The parties are satisfied that the development will not affect the heritage significance of the heritage conservation area, and therefore a heritage management document is not required under cl 5.10(5) of the LEP. 3. Clause 5.21 of the LEP is concerned with flood planning. The parties advise that the site is not within the flood planning area. 4. Clause 6.1 of the LEP is concerned with acid sulfate soils. The parties advise that the site is not located in land identified as acid sulfate soils Classes 1, 2, 3, 4 or 5. 5. Clause 6.2 of the LEP is concerned with earthworks. The parties advise that the Applicant submitted a Geotechnical Report dated 21 April 2022 prepared by JK Geotechnics as part of the DA. The Applicant has also provided the Council with a Supplementary Geotechnical Report prepared by Crozier Geotechnics, which addresses the considerations in cl 6.2. On the basis of these reports, the parties advise that they are satisfied that the Court may grant consent to the DA taking into consideration the matters at cl 6.2(3) of the LEP. 6. Clause 6.4 of the LEP is concerned with terrestrial biodiversity. The parties advise that the site is not identified as 'Biodiversity' in the Terrestrial Biodiversity Map in the LEP. 7. Clause 6.15 of the LEP is concerned with stormwater management. The parties consider that the Court can be satisfied that in accordance with cl 6.15(3) the proposed development: 1. is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water; 2. includes on-site retention for use as an alternative supply to mains water, groundwater or river water; and 3. avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonable avoided, minimises or mitigates the impact. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site. As the DA was lodged on 20 July 2022, the version of the Biodiversity SEPP in force at that date pre-dates the amendments made to the Biodiversity SEPP on 21 November 2022. The parties submit that for the purposes of Ch 8 of the Biodiversity SEPP, the site is not located within the Sydney Drinking Water Catchment; and for the purposes of Ch 10 of the Biodiversity SEPP, the site is not located in the Sydney Harbour Catchment. 2. The Applicant is seeking approval to remove and replace trees (as particularised in the Arboricultural Report submitted with the DA), in accordance with Ch 2 of the Biodiversity SEPP. The parties are satisfied that the proposed development is acceptable in accordance with the requirements of the Biodiversity SEPP. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the BASIX certificate (Number 1283923M_03 dated 5 April 2024 prepared by Gradwell Consulting) has been lodged as supporting information with the amended DA. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and 1. The parties advise The Statement of Environmental Effects prepared by Navon Planning dated July 2022, concludes that the site has been historically used for residential purposes. The parties are satisfied that the site is not contaminated, and therefore that consent can be granted having regard to the matters at s 4.6 of the Resilience and Hazards SEPP. 2. the Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. Waverley Development Control Plan 2012 - Amendment No. 9 1. The parties advise that the amended architectural drawings are satisfactory having regard to the provisions of the DCP Amendment No. 9 and s 4.15(1)(a)(iii) of the EPA Act, and that all contentions raised in the Respondent's SOFAC filed on 22 November 2023 have been resolved by amended documents and agreed conditions of consent. Conclusion 1. Having considered the advice of the parties provided above at [12-30], I am satisfied that: 1. the Applicant's amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; 3. approval of the proposed development is in the public interest. 1. Further, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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. 3. The Court notes: 1. that Waverley Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-301/2022 made on 30 April 2024 to rely on the documents specified below: Architectural Plans Reference Description Author/Drawn Date DA0000 (Revision D) Cover Page Mark Shapiro Architects 12.04.24 DA1000 (Revision D) Site Analysis Plan Mark Shapiro Architects 12.04.24 DA1001 (Revision D) Setback Diagram Mark Shapiro Architects 12.04.24 DA1100 (Revision D) Site Analysis and Location Plan Mark Shapiro Architects 12.04.24 DA1101 (Revision D) Demolition Plan - Front Mark Shapiro Architects 12.04.24 DA1102 (Revision D) Demolition Plan – Rear Mark Shapiro Architects 12.04.24 DA2000 (Revision D) Existing Basement Plan Mark Shapiro Architects 12.04.24 DA2001 (Revision D) Existing Ground Floor Plan Mark Shapiro Architects 12.04.24 DA2002 (Revision D) Existing First Floor Plan Mark Shapiro Architects 12.04.24 DA2003 (Revision D) Existing Roof Plan Mark Shapiro Architects 12.04.24 DA2004 (Revision D) Existing North Elevation Mark Shapiro Architects 12.04.24 DA2005 (Revision D) Existing South Elevation Mark Shapiro Architects 12.04.24 DA2006 (Revision D) Existing East Elevation Mark Shapiro Architects 12.04.24 DA2007 (Revision D) Existing West Elevation Mark Shapiro Architects 12.04.24 DA2008 (Revision D) Basement Floor Plan Mark Shapiro Architects 12.04.24 DA2009 (Revision D) Lower Ground Floor Plan Mark Shapiro Architects 12.04.24 DA2010 (Revision D) Ground Floor Plan Mark Shapiro Architects 12.04.24 DA2011 (Revision D) Ground Floor Rear Plan Mark Shapiro Architects 12.04.24 DA2012 (Revision D) First Floor Plan Mark Shapiro Architects 12.04.24 DA2013 (Revision D) Roof Plan Mark Shapiro Architects 12.04.24 DA2300 (Revision D) Site Section Mark Shapiro Architects 12.04.24 DA2301 (Revision D) Section A Mark Shapiro Architects 12.04.24 DA2302 (Revision D) Section B Mark Shapiro Architects 12.04.24 DA2400 (Revision D) North Elevation Mark Shapiro Architects 12.04.24 DA2401 (Revision D) South Elevation Mark Shapiro Architects 12.04.24 DA2402 (Revision D) East Elevation Mark Shapiro Architects 12.04.24 DA2403 (Revision D) West Elevation Mark Shapiro Architects 12.04.24 DA2404 (Revision D) External Finishes Schedule Mark Shapiro Architects 12.04.24 DA2405 (Revision D) Street Elevation Mark Shapiro Architects 12.04.24 DA9000 (Revision D) Existing GFA Mark Shapiro Architects 12.04.24 DA9001 (Revision D) Proposed GFA Mark Shapiro Architects 12.04.24 DA9002 (Revision D) Landscaping Areas Mark Shapiro Architects 12.04.24 DA9003 (Revision D) Open Space Areas Mark Shapiro Architects 12.04.24 DA9004 (Revision D) Height Plane Diagram Mark Shapiro Architects 12.04.24 DA9005 (Revision D) View Loss Analysis – Photo Legend Mark Shapiro Architects 12.04.24 DA9006 (Revision D) No 73 Portland St – View P1 Previous Revisions Mark Shapiro Architects 12.04.24 DA9007 (Revision D) No 73 Portland St – View P1 Proposed Mark Shapiro Architects 12.04.24 DA9008 (Revision D) No 73 Portland St – View P3 Previous Revisions Mark Shapiro Architects 12.04.24 DA9009 (Revision D) No 73 Portland St – View P3 Proposed Mark Shapiro Architects 12.04.24 DA9010 (Revision D) No 75 Portland St – View P8 Previous Revisions Mark Shapiro Architects 12.04.24 DA9011 (Revision D) No 75 Portland St – View P8 Proposed Mark Shapiro Architects 12.04.24 DA9012 (Revision D) No 75 Portland St – View P10 Previous Revisions Mark Shapiro Architects 12.04.24 DA9013 (Revision D) No 75 Portland St – View P10 Proposed Mark Shapiro Architects 12.04.24 DA9014 (Revision D) No 75 Portland St – View P9 Previous Revisions Mark Shapiro Architects 12.04.24 DA9015 (Revision D) No 75 Portland St – View P9 Proposed Mark Shapiro Architects 12.04.24 DA9016 (Revision D) No 70 Gilbert St – Privacy Overlooking Impact Diagrams Mark Shapiro Architects 12.04.24 DA9017 (Revision D) No 70 Gilbert St – Privacy Overlooking Impact Diagrams Mark Shapiro Architects 12.04.24 DA9100 (Revision D) Shadow Diagrams 9am -12pm Mark Shapiro Architects 12.04.24 DA9101 (Revision D) Shadow Diagrams 1pm – 3pm Mark Shapiro Architects 12.04.24 DA9102 (Revision D) Elevational Shadow Diagrams 9am -12pm Mark Shapiro Architects 12.04.24 DA9103 (Revision D) Elevational Shadow Diagrams 12pm – 3pm Mark Shapiro Architects 12.04.24 DA9104 (Revision D) Solar Access Diagrams 8:00 – 12:00 Mark Shapiro Architects 12.04.24 D9105 (Revision D) Solar Access Diagrams 1pm – 3pm Mark Shapiro Architects 12.04.24 DA9200 (Revision D) Photomontage Mark Shapiro Architects 12.04.24 DA9300 (Revision D) Draft Stata Plan – Basement & Lower Ground Mark Shapiro Architects 12.04.24 DA9301 (Revision D) Draft Strata Plan – Ground & First Mark Shapiro Architects 12.04.24 DA9500 (Revision D) Notification Site Plan Mark Shapiro Architects 12.04.24 DA9501 (Revision D) Notification Elevations Mark Shapiro Architects 12.04.24 Other Documents Document Prepared by Date Clause 4.6 Written Variation Request – Floor Space Ratio Navon Planning April 2024 Clause 4.6 Written Variation Request – Building Height Navon Planning April 2024 Visual Impact Assessment Navon Planning 27 March 2024 Supplementary Geotechnical Report Crozier Geotechnics 10 April 2024 BASIX Certificate No. 1283923M_03 Gradwell Consulting 5 April 2024 NatHERS Certificate No. 0009356080-01 Gradwell Consulting 5 April 2024 NatHERS Certificate No. 0009356098-01 Gradwell Consulting 5 April 2024 1. The amended DA was filed with the Court on 30 April 2024. 1. The Court orders that: 1. The appeal is upheld. 2. The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for height of building control contained within cl 4.3 thereof, as prepared by Navon Planning dated April 2024, is upheld. 3. The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for the floor space ratio control contained within cl 4.4 thereof, as prepared by Navon Planning dated April 2024, is upheld. 4. Development consent is granted to development application No. DA-301/2022 for demolition of an existing dual occupancy and construction of a new attached dual occupancy including basement car parking, swimming pools, tree removal, landscaping and strata subdivision at 68 Gilbert Street, Dover Heights 2030, legally known as CP in SP 75491 and Lots 3 and 4 in SP 83312, subject to the conditions of consent in Annexure A. G Kullen 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: 12 June 2024