Land and Environment Court New South Wales Medium Neutral Citation: Airth v Waverley Council [2024] NSWLEC 1750 Hearing dates: Conciliation conference 30 October 2024 Date of orders: 22 November 2024 Decision date: 22 November 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application No DA-278/2023 lodged with the Respondent on 6 October 2023, for the demolition of existing dwelling and garage on site, erection of a new 2 dwelling with loft and basement with pool to rear on land known as 411 Bronte Road, Bronte, also known as Lot 134 DP 1033, is determined by the grant of consent subject to conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION: demolition and construction of a new residential dwelling – conciliation conference – amended plans and materials – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, s 23, 27, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.4A, 6.1, 6.2 Texts Cited: Waverley Development Control Plan 2022 Category: Principal judgment Parties: Hannah Airth (Applicant) Waverley Council (Respondent) Representation: Counsel: J Smith (Applicant) J Ede (Solicitor)(Respondent) Solicitors: Foundation Law Group (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2024/157451 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-278/2023. The development application seeks consent for the demolition of the existing dwelling and construction of a two storey dwelling house and swimming pool (proposed development) at 411 Bronte Road, Bronte. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 30 October 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 October 2024. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. The Applicant is a registered proprietor of the site. The development application confirms that both owners consented to the lodgement of the development application as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 2. The development application was notified by the Respondent between 7 December 2023 to 11 January 2024. Eight submissions were received in response to the notification. The development application was amended during the assessment of the application by the Council. The development application was renotified from 4 March to 18 March 2024. Council received 6 submissions maintaining objection to the development. Further, a number of members of the public addressed the Court at the commencement of the proceedings on site. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. The proposed development is 'BASIX development' as defined by the EPA Regulation and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements. The BASIX Certificate satisfied the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the development application was made. A condition of consent requires compliance with the commitments detailed in the BASIX certificate. 4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the land to be utilised for residential purposes has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied. 5. Waverley Local Environmental Plan 2012 (LEP 2012) applies to the land. Pursuant to LEP 2012 the land is zoned R2 Low Density Residential. Development for the purposes of dwelling houses is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. • To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. 1. Pursuant to cl 2.7 of LEP 2012 demolition is permitted with consent. 2. Pursuant to cl 4.3 'Height of Buildings' of LEP 2012, the site is subject to a maximum building height control of 8.5m. The amended development has a maximum height which is compliant with the development standard. 3. Pursuant to cl 4.4 'Floor Space Ratio', cl 4.4A(c) and the Floor Space Ratio map of LEP 2012, a maximum floor space ratio (FSR) of 0.5:1 applies for the land. The architectural plans demonstrate that the amended development has a maximum FSR of 0.5:1 which is compliant with the development standard. 4. Clause 6.1 'Acid sulphate soils' requires development consent for works to which the table at subcl (2) applies. The subject site is mapped as Class 5, however the development application does not include works by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. 5. Excavation for a basement and access levels is proposed in the development application. Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters listed at cl 6.2(3) of LEP 2012. Those matters include: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. In granting consent to the development, with the assistance of the Statement of Environmental Effects, the geotechnical report and the architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3) of cl 6.2. Having considered the listed matters I am satisfied that none warrant the refusal of the development application. 2. Waverley Development Control Plan 2022 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (subs 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that the Respondent has approved, pursuant to s 38 of the EPA Regulation, the Applicant amending the development application DA‑278/2023 to rely on the plans and documents listed at condition 1 in Annexure A. 4. The Court orders that: 1. The appeal is upheld. 2. Development application No DA-278/2023 lodged with the Respondent on 6 October 2023, for the demolition of existing dwelling and garage on site, erection of a new 2 dwelling with loft and basement with pool to rear on land known as 411 Bronte Road, Bronte, also known as Lot 134 DP 1033, is determined by the grant of consent subject to conditions at Annexure A. D Dickson 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: 22 November 2024