Stargate Building & Constructions Pty Ltd v Waverley Council [2018] NSWLEC 1576

Land and Environment Court New South Wales

Medium Neutral Citation: Stargate Building & Constructions Pty Ltd v Waverley Council [2018] NSWLEC 1576 Hearing dates: Conciliation conference on 27 August 2018 and 27 September 2018 Date of orders: 07 November 2018 Decision date: 07 November 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [6] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Stargate Building & Constructions Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Solicitors: A Knox, Pikes & Verekers Lawyers (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/36071 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Stargate Building & Constructions Pty Ltd against the actual refusal by Waverley Council of development application No. DA-26/2017. The application seeks consent for alterations and additions to the existing residential flat building including two additional levels and associated internal alterations at 48-50 Penkvill Street, Bondi (SP 82755). 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. I confirm that the development relies on a variation request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (LEP 2012) to vary the floor space ratio development standard in the instrument. Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority (or the court exercising the functions of a consent authority) can exercise the power to grant development consent. In reviewing the applicant's written variation request I find that the requirements of cl 4.6(3) are adequately addressed and the contravention of the standard justified. Further as the consent authority I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened, and the zone objectives. 6. 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. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicant's written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 ("WLEP") seeking to justify the breach of the floor space ratio development standard dated 10 September 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of WLEP. Consequently, the applicant's written request is well founded and is upheld. 2. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 2 of Annexure "A". 3. The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $23,000 within the 28 days of these orders. 4. Appeal upheld. 5. Development Application DA-26/2017 for alterations and additions to the residential flat resulting in a total of 37 units at 48-50 Penkivil Street, Bondi is approved subject to the conditions at Annexure "A" to this agreement. ………………………. D M Dickson Commissioner of the Court Annexure A Annexure B Plans (13.3 MB, pdf) 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: 07 November 2018