HSN Holding Bondi Pty Ltd v Waverley Council [2015] NSWLEC 1322

Land and Environment Court New South Wales

Medium Neutral Citation: HSN Holding Bondi Pty Ltd v Waverley Council [2015] NSWLEC 1322 Hearing dates: 4 August 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: See par 22 Catchwords: MODIFICATION: application to modify approval for demolition of an existing dwelling and the construction of a new mixed use building comprising nine residential units by the addition of a studio apartment - Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: HSN Holding Bondi Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Mr G Green, solicitor (Applicant) Ms A Berry, solicitor (Respondent)

Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10322 of 2015 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Modification Application DA-88-2013/A by Waverley Council under section 96(2) of the Environmental Planning and Assessment Act 1979 (the Act). The modification application seeks to modify DA-88/2013/1 which was granted for the demolition of an existing dwelling and the construction of a new mixed use building comprising 8 residential units on 25 June 2013. The council approval was subject to a number of deferred commencement conditions. Deferred commencement condition 5 provided: 5. The rear most unit on the third floor of the proposed development is not approved and is to be deleted, and the rear boundary setback of the remaining third floor area be increased a further 1.5m. 1. On 30 July 2013 the applicant submitted a s82A review application to council seeking deletion of deferred commencement condition 5 (amongst other amendments). That review application was approved but subject to the following amendment to deferred commencement condition 5: The rear most unit on the second (uppermost) floor of the proposed development is not approved and is to be deleted and replaced with a non-trafficable flat roof. 1. Condition 2(e) was also imposed on what became DA-88/2013/1 as follows: 2(e) The one bedroom apartment located at the rear second (uppermost) floor deleted by the deferred commencement matter No 5 is not approved and is to be deleted in order to reduce the visual bulk related impact to the rear and the adjoining property located at 3-5 Jaques Avenue, south west of the subject site. 1. The application proposes to modify condition 1 (a) to read as follows: (1) Approved development The development must be in accordance with: (a) Architectural plans no. DA-00 - DA-12 dated 26/08/14 prepared by MHND Union. (b) Delete condition 2(e) which condition requires deletion of a one bedroom apartment located at the rear of the second (upper most) floor. 1. The appeal was subject of a conciliation conference on 7 May 2010 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii).