Land and Environment Court New South Wales Medium Neutral Citation: Shamieh v Waverley Council [2019] NSWLEC 1144 Hearing dates: Conciliation conference on 7 & 8 February 2019; 5 & 14 March 2019; 3 April 2019 Date of orders: 03 April 2019 Decision date: 03 April 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [22] 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 Roads Act 1993 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Belinda Barbara Shamieh (Applicant) Waverley Council (Respondent) Representation: Counsel: T Hale SC (Applicant) Solicitors: Madison Marcus Law Firm (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/59531 Publication restriction: No Judgment 1. COMMISSIONER: On 28 March 2017, Mrs Shamieh lodged Development Application No. 094/2017 with the Waverley Council seeking consent for the demolition of structures, earthworks and the construction of a multi storey dwelling at 20 Loombah Road, Dover Heights (the site). At that time pedestrian access was proposed from Loombah Road via a pedestrian bridge and footpath traversing an unconstructed section of Loombah Road reserve to access the entry of the dwelling at mezzanine level. Therefore, the development application included an application under s 138 of the Roads Act 1993 for a walkway from the dwelling to Loombah Road (the Development Application). Chronology 1. On 17 November 2017, the Council refused the Development Application for the reasons as outlined in its Notice of Determination dated 17 November 2017. 2. On 22 February 2017, the current appeal was filed by the Applicant against the Council's refusal of the Development Application. 3. On 22 February 2018, the Applicant also filed a Notice of Motion and Supporting Affidavit seeking leave to amend the Development Application and to rely upon the amended plans and documents. 4. On 1 March 2018, the Court granted leave to amend the Development Application to rely upon the amended plans filed on 22 February 2018. 5. On 15 March 2018, the Court listed the proceedings for a section 34AA conciliation conference and hearing on 16-17 August 2018. 1. On 9 May 2018, the Respondent filed its Statement of Facts and Contentions (SOFC). In summary, the Council raised the following reasons in Part B of their SOFC as to why the application should be refused: "a. Excessive Building Height; b. Excessive Floor Space Ratio (Bulk and Scale); c. Inadequate Setbacks; d. Unacceptable Streetscape and Visual Impact; e. Front Fence not Compliant; f. Visual and Acoustic Privacy; g. Solar Access/ Overshadowing Impacts; h. View Loss; i. Impact on Endangered Species Acacia terminalis subspecies terminalis j. Detrimental effect on Earthworks k. Adverse impact on Terrestrial Biodiversity l. Inadequate Landscaping m. Insufficient Information: Pedestrian Access Bridge n. Public Interest o. No Secondary Dwelling p. Insufficient Information (Ecology) q. Inaccuracies within the submitted Assessment of Significance r. Lack of Commonwealth Referral s. Inaccuracies within the submitted Statement of Environmental Effects with regards to Biodiversity area and its maintenance" 1. On 20 June 2018, the Applicant filed a Notice of Motion to vacate the hearing dates to allow the Applicant to obtain the requirements for Species Impact Statement from the Office of Environment & Heritage (OEH). 2. On 28 June 2018, the hearing dates on 16-17 August 2018 were vacated. 3. On 11 July 2018, the proceedings were set down for s34AA conciliation conference and hearing on 7 and 8 February 2019 before me. 4. On 17 December 2018, the Applicant filed a Notice of Motion seeking leave to rely on further amended plans and documents to address Council's contentions filed on 9 May 2018. 5. On 30 January 2019, the Applicant's Notice of Motion was dismissed as the motion was too late and too close to the hearing dates. However, the further amended plans were relied on by the Applicant on a 'without prejudice' basis for the purpose of the conciliation conference on 7 February 2019. 6. On 1 February 2019, the Applicant obtained a Species Impact Statement including an Ecological Translocation and Conservation Plan and an Assessment of Significance which was prepared in response to Council's SOFC. 7. On 7 February 2019, a conciliation conference was held pursuant to s 34AA. On that date, the contentions raised by the Respondent were largely resolved. 8. During the period 8 February 2019 to 14 March 2019, the Applicant amended the Development Application to address the itemised concerns previously raised being those matters listed below: "a. The proposed built form over the cliff and the elevated walkway to Loombah Road will be removed; b. Front setback from the face of the cliff to be located in the location of the centre of the existing driveway as measured from the site survey. Site survey to be overlaid and driveway dimensioned on any new plan. This includes no overhangs; c. Rear setback as per existing house rear setback; d. The proposal will comply with the height development standard – need details based on spot levels taken/measured from the survey; e. The proposal will comply with the FSR standard – need accurate GFA/FSR drawings based on GFA definition; f. The elevated terrace will be reduced, and appropriate screening will be introduced; g. Elevated pool to be screened; h. Side setbacks 900mm to the east and 1.2m to the west; i. Need to demonstrate no unacceptable additional overshadowing to the west facing openings/living area of the approved dwelling at 25 Macleay St. We discussed that this may include the need to angle the built form of the N-W section of the amended design on the subject site." 1. On 14 March 2019, the Applicant's expert planner Mr Betros confirmed that the amended package of plans addressed and satisfied any itemised concerns previously raised in the appeal. 2. In the Respondent's opinion, the amended plans and documentation have adequately addressed the Respondent's concerns set out in Part B of the SOFC. The schedule of amendments is attached to the parties' s34 agreement and assists in understanding the final design in the amendment plans and conditions. 3. The Applicant now seeks consent for the amended Development Application and has proposed this s34 agreement. 4. 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 the function under s 4.16 of the EPA Act. 5. I am informed by the Council that the amended development does not breach any relevant provision of the Waverley Local Environmental Plan 2012 that applies. The development is permissible in the R2 Residential low density zone and compliant in terms of height, FSR and setbacks. Importantly, the application does not require for pedestrian access from Loombah Road and over the Council's road reserve. The Council's and the local objectors' concern about negative impacts on the native vegetation in this area are no longer at issue. 6. As the jurisdictional prerequisites to the grant of consent have been addressed 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. 7. 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. 8. The Court orders: 1. The Applicant is granted leave to amend Development Application DA-94/2017 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto. 2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $5,000 less as $1,200.00 has already been paid in error for notification costs of an early version of amended plans. 3. The appeal is upheld. 4. Development Application DA-94/2017 seeking consent for the demolition of a dwelling and construction of a part 2 and part 3 storey dwelling house with a garage and a swimming pool on the land known as 20 Loombah Road, Dover Heights is granted subject to the conditions of consent annexed hereto and marked "A". …………………. S Dixon Senior Commissioner of the Court Annexure A Architectural Plans Stormwater Plans Landscape Plan Schedule of Amendments Amendments 23 May 2019 - Correction made to typographical error at [1] 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: 23 May 2019