Jaya Kusuma Pty Ltd v Waverley Council [2019] NSWLEC 1084

Land and Environment Court New South Wales

Medium Neutral Citation: Jaya Kusuma Pty Ltd v Waverley Council [2019] NSWLEC 1084 Hearing dates: Conciliation conference on 31 January 2019 and 15 February 2019 Date of orders: 01 March 2019 Decision date: 01 March 2019 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [14] below Catchwords: DEVELOPMENT APPEAL against deemed refusal - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environment Plan 2012 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Category: Principal judgment Parties: Jaya Kusuma Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: J Reid (Applicant)

Solicitors: Thomson Geer (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/213245 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of DA 46/2018 for the demolition of existing dwellings, construction of a new four storey residential flat building with one level of basement car parking at 625-627 Old South Head Road, Rose Bay. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 January 2019 and 15 February 2019. I presided over the conciliation conference. 3. 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act, and which comprised appendices, was filed with the Court on 19 February 2019. 4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 5. 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. The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference, and in written submissions following the conference, as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the following agreed orders. 6. The parties agree that the proposed development exceeds the Floor Space Ratio development standard set out in cl 4.4 of the Waverley Local Environment Plan 2012 (WLEP). The applicant seeks a variation to the development standard in cl 4.4 of the WLEP and has lodged a written request pursuant to cl 4.6 and filed with the Court on 13 February 2019. 7. 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. 8. I have read the written request and I am satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6 (as set out in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118) for the following reasons. 9. Clause 4.4 of the WLEP provides for a maximum Floor Space Ratio of 0.9:1 on the subject site. To the extent that the proposal exceeds the numerical Floor Space Ratio value established by the WLEP, it is relevant that the proposal complies with the maximum Height of Buildings development standard, and all setbacks. 10. Given the steep incline of the site's topography, and the general arrangement of volume on the site, it is also relevant, in my view, that in the theoretical circumstance that Unit 3 was removed from the proposal, the FSR would comply, without material change to the external envelope of the development. 11. I am satisfied that the proposal achieves the objectives of the development standard found in cl 4.4(d) and which seeks to preserve the environmental amenity of neighbouring properties. In forming this view, I consider that the objective must operate within the context of the planning controls which do not seek to preserve environmental amenity by preventing development on the subject site, but should be considered in the context of the overall scale of development permitted by the planning controls. I also note that the amended plans preserve the environmental amenity of neighbouring properties in the following ways: 1. Greater setback to allow additional landscaping adjacent to No. 68 George Street. 2. Relocation of a balcony to provide private open space to Unit 9 to avoid overlooking to No. 68 George Street. 3. A lesser impact on the solar access to No. 623 Old South Head Road than a building of a greater height as permitted, and if the FSR were reduced to numerical compliance. 1. In my view, and despite the non-compliance, the development achieves the objectives of the development standard and the zoning. Consequently, and based on the evidence before me, 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 final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1(a) of Annexure "A". 2. The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $14,950.00 within the 28 days of these orders. 3. 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 13 February 2019 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. 4. The appeal is upheld. 5. Development Application DA 46/2018 for the demolition of all existing structures, construction of a new three storey residential apartment development with one level of basement car parking at 625-627 Old South Head Road, Rose Bay is approved subject to the conditions at Annexure "A", of which Condition 18 refers to the Voluntary Planning Agreement.