Land and Environment Court New South Wales Medium Neutral Citation: Deutsch v Waverley Council [2024] NSWLEC 1663 Hearing dates: Conciliation conference on 4 October 2024 Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $14,000 within 28 days of the date of these orders. (2) The Applicant's written request, prepared by LK Planning dated 27 August 2024, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, to vary the height development standard in cl 4.3 of the Waverley Local Environmental Plan 2012, is upheld. (3) The appeal is upheld. (4) Development Application No. DA-367/2022, as amended, for the retention of the front of the existing building, demolition and construction of a shop-top housing development containing four units at 56 Campbell Parade, Bondi Beach, is determined by the grant of consent subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – shop top housing – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, ss 34, Water Management Act 2000, s 90 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, s 147, Ch 4, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 2.12, 2.13, 4.6, Ch 2 Waverley Local Environmental Plan 2012, cll 4.3, 4.6, 6.1, 6.9, 6.16, Category: Principal judgment Parties: Robert Deutsch (Applicant) Waverley Council (Respondent) Representation: Counsel: A Adams (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/333798 Publication restriction: Nil Judgment 1. COMMISSIONER: These Class 1 proceedings arise as from the determination of Development application No. DA-367/2022 for the retention of the front of an existing building, demolition and construction of a shop-top housing development containing four units at 56 Campbell Parade, Bondi Beach, legally known as Lots CP, 1, 2, 3, 4 and 5 in SP 30493. The appeal specifically relates to the applicant's dissatisfaction with certain conditions of consent. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 October 2024. I presided over the conciliation conference. 4. 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. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. 5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council's contentions. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained, and from this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified from 12 September to 12 October 2022. Six submissions were received, and no oral submissions were made at the commencement of these proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. 3. The subject site is zoned E1 Local Centre under the Waverley Local Environmental Plan 2012 (WLEP) within which development for the purposes of shop top housing is permissible with consent. The proposed development is consistent with the objectives of this zone. 4. Pursuant to WLEP cl 4.3, a maximum building height of 15m applies to the subject site. The proposed development exceeds this development standard with a maximum height of 16.73m, or 11.53%. This exceedance is created by the uppermost storey of the development. 5. As a result of this exceedance, cl 4.6(3) of the WLEP allows the applicants to request a contravention of this development standard through the submission of a written request. This request must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared LK Planning dated 23 August 2022, amended 27 August 2024 (the cl 4.6 request). Pursuant to WLEP cl 4.6, I am satisfied that: 1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the E1 Local Centre zone and the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its siting and form. 2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that: 1. The element that causes the breach is well set back from the primary building form, and therefore does not cause any unreasonable adverse impacts. Further, it is not readily visible from the public domain. 2. The breach of building height standard results from an alternative configuration of the building that allows the retention of significant elements of the original building that is contributory to the HCA. 3. The building will likely maintain its contributory status post-development despite the height exceedance. 4. The scale of the building will be in keeping with the surrounding context and adjacent sites, despite the height exceedance. 1. The contravention is therefore justified by facilitating the retention of the original façade; a lack of adverse impact on the neighbouring residents; and by the resulting contribution and compatibility with the architectural style of the building and neighbouring buildings. 2. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. WLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 3:1 The proposed development complies with this development standard with an FSR of 2.72:1. 2. The site is not identified as a heritage item, however it is located within the Bondi Beach Heritage Conservation Area (HCA) and is within the vicinity of three heritage items, as listed in Sch 5 of the WLEP. Based on the Heritage Impact Statement by Wier Phillips Heritage and Planning dated 2 August 2022 (Heritage Impact Statement), I accept that the works will have an acceptable impact on the HCA, and also on the heritage items within the vicinity in accordance with WLEP cl 5.10. 3. The site is not identified in the flood planning area. 4. Pursuant to WLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however it is not located below 5m Australian Height Datum. To the extent that the works may impact the water table, General Terms of Approval have been issued by Water NSW in relation to the works. From this, the parties submit and I accept that no Acid Sulfate Soils Management Plan is required and the development meets the requirement of this clause. 5. The site is identified on the Key Sites Map and involves alterations to an existing building with a height greater than 15m. Subsequently, WLEP cl 6.9, Design Excellence applies and requires the consent authority to be satisfied that the development exhibits design excellence. To that end, an assessment of the development against the relevant criteria listed in cl 6.9(4) has been provided by the parties in the Design Verification Statement by Architects Nicholas and Associates, dated 24 August 2024, and the SEPP 65 and ADG Compliance Checklist, also by Architects Nicholas and Associates, dated 15 August 2022. From this, the parties submit, and I accept that the proposed development exhibits design excellence. 6. Clause 6.16 of the WLEP requires the consent authority to consider the impact of development in an E1 zone on the amenity of surrounding residential areas and the desired future character of the area, as well as considering whether the development is consistent with the hierarchy of centres. From the parties' submission and the information contained in the Statement of Environmental Effects by L K Planning dated 23 August 2022 (the SEE), I accept that these matters have been considered, and the development is acceptable pursuant to cl 6.16. 7. The proposed development includes excavation for a basement which will likely interfere with the water table and may necessitate dewatering. To that end and pursuant to s 90 of the Water Management Act 2000, approval was sought from Water NSW, and the subsequent General Terms of Approval from Water NSW is included in the agreed conditions of consent. 8. As the site is identified as being within a Coastal Use Area pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), Ch 2 of this SEPP applies. From the parties' submission and the information contained in the amended architectural drawings by Architects Nicholas and Associates issued 14 August 2024, the Heritage Impact Statement and the Geotechnical Investigation by Geotechnics dated 3 September 2021 (the Geotechnical Report) I accept that the proposed development satisfies the requirements of ss 2.11 and 2.12 of the SEPP R&H. Further, the parties submit and I accept that no coastal management plan currently applies to the site, and therefore that s 2.13 is also satisfied. 9. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties' submission and the Geotechnical Report, I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use. 10. As the development application was submitted on 2 September 2022, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the development. Accordingly, the application was accompanied by a BASIX certificate which the parties submit, and I accept, is satisfactory. 11. Pursuant to the savings provisions in the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), Ch 4 of this SEPP applies to development applications made but not finally determined by 14 December 2023. Accordingly, pursuant to s 147(1) of the Housing SEPP, from the parties' submission and the Residential Design Code Checklist by Architects Nicholas and Associates dated 15 August 2022, I accept that the proposed development has been considered against the design principles set out in Sch 9 of the Housing SEPP, the Apartment Design Guide, and the advice received from the Waverley Design Review Panel. Conclusion 1. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. The Respondent, Waverley Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA-367/2022 to include the documents set out in Annexure B (Amended Application). 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $14,000 within 28 days of the date of these orders. 2. The Applicant's written request, prepared by LK Planning dated 27 August 2024, made pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, to vary the height development standard in cl 4.3 of the Waverley Local Environmental Plan 2012, is upheld. 3. The appeal is upheld. 4. Development Application No. DA-367/2022, as amended, for the retention of the front of the existing building, demolition and construction of a shop-top housing development containing four units at 56 Campbell Parade, Bondi Beach, is determined by the grant of consent subject to the conditions at Annexure A. ………………………. E Washington Commissioner of the Court Annexure A Annexure B ********** 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: 22 October 2024