Land and Environment Court New South Wales Medium Neutral Citation: STM 123 Pty Limited v Waverley Council [2019] NSWLEC 1167 Hearing dates: Conciliation conference on 09 April 2019 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See [25] below Catchwords: DEVELOPMENT APPLICATION: affordable housing residential flat building; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: STM 123 Pty Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: A Pickles, SC (Applicant) Solicitors: Conomos Legal (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/95365 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by STM 123 Pty Limited (the Applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Waverley Council (the Council) of Development Application DA-489/2017 (the application). 2. The application as lodged originally sought consent under the EPA Act for significant modifications to an approved residential flat building (RFB) at 14 Fletcher Street, Tamarama (the site). The modifications included the lowering of the approved building and construction of an additional level, resulting in a 4 storey RFB with 12 units and basement car parking. 3. The Council notified the application and six submissions were received raising concerns with view loss, demolition and construction impacts, street parking, structural impacts from excavation, building separation and loss of privacy. 4. On 27 March 2018, the applicant commenced the appeal against the deemed refusal of the application. 5. In response, the Council filed a Statement of Facts and Contentions (SFC) raising concerns with floor space ratio (FSR), height, setbacks, building length, solar access, excavation, visual privacy, amenity, common circulation and spaces, communal open space and public interest. 6. On 20 August 2018, a conciliation conference was held pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act) but was terminated as the parties could not come to an agreement. 7. However, the applicant prepared amended plans and information in response to the concerns raised during conciliation. A key change was that the amended application sought consent for the construction of a new RFB rather than amending the existing development consent. 8. The amended plans were notified and three submissions were received raising concerns with view loss, loss of privacy, amenity impacts, built form and scale, structural / excavation impacts and solar access. 9. The appeal was listed for hearing before me. However, prior to the hearing, experts for the parties had participated in further discussions in respect of the amended application following conciliation including having regard to a view loss analysis prepared by the applicant. The experts considered that the Council contentions, and relevant concerns of objectors, had been addressed. 10. The parties therefore requested that the hearing be adjourned as agreement had been reached between the parties on an acceptable amended application. They requested the matter be listed as a further s 34 conciliation conference at which to present an agreement. 11. I presided over that conciliation and an agreement under s 34(3) of the LEC Act was filed by the parties. 12. Filed with the agreement was a 'statement of reasons' prepared by the parties (Annexure B to their agreement) as to how the agreement was arrived at and the jurisdictional matters for the Court to consider in making the orders sought in the agreement. This judgment reproduces much of the content of that statement of reasons. 13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 14. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 15. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 16. Nevertheless, it is relevant to note that the Council considers that the amended proposal and view loss assessment are satisfactory given there are no additional unreasonable view impacts arising from the application compared to the previous consent issued for the site. Further, that the amended plans and documentation adequately address the reasons for refusal as set out in the SFC. 17. The amended application seeks approval of the development as affordable housing under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). 18. The proposal includes the dedication of six units as affordable housing for a period of 10 years. The application complies with the provisions of the ARH SEPP and with the floor space ratio (FSR) bonus afforded by the SEPP. 19. However, the development will result in the loss of affordable housing as the existing RFB on the site is not strata subdivided and includes apartments that are low rental units. Accordingly, the agreed conditions of consent provide for the payment of a contribution for the loss of the low rental units in accordance with cl 51 of the ARH SEPP. Additionally, and as indicated, the development includes the dedication of 6 units as affordable housing for a period of 10 years in order to comply with the FSR control and the bonus FSR provisions at cl 13 of the SEPP. 20. The application was lodged under the provisions of the Waverley Local Environmental Plan 2012 (the LEP). The development is permissible in the R3 Medium Density Residential zone in which the site is located. 21. Further, the development meets the objectives of the R3 zone at cl 2.3 of the LEP and of the FSR standard at cl 4.4 notwithstanding the FSR utilises the FSR bonus applicable under the ARH SEPP. The Council has also considered the earthworks provision which apply at cl 6.2. 22. The development is also required to comply with the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development under the provisions of the Environmental Planning and Assessment Regulation 2000 (the Regulations). The applicant's architect has prepared a Design Verification Statement which meets the requirements under cll 50(1AB) and 143A of the Regulations. 23. The development is also required to comply with the provisions of State Environmental Planning Policy No 55—Remediation of Land and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The site is currently occupied by an older RFB and has a history of residential land use. The proposal does not seek to alter the categorisation of land use and the Council records do not indicate that the site has been developed or used for activities that may cause contamination. 24. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 25. Accordingly, the Court orders that: 1. The Applicant is given leave to amend the development application to rely on State Environmental Planning Policy (Affordable Rental Housing) 2009 and rely upon the following plans in the proceedings: 1. LEC2 901 Public Works Plan Issue A, dated 07.02.2019; 2. Draft Strata Subdivision Plans, Drawing No LEC2 DA 600 and LEC2 DA 601, Issue A dated 28.03.19 prepared by 'Nicholas Tang Architects'; and 3. BASIX Certificate No. 630443M_04 dated 13 March 2019. 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. 2. The appeal is upheld. 3. Development application DA-489/2017 for construction of a 4 storey residential flat building with 12 units, including 6 units dedicated for affordable housing pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 and basement car parking at 14 Fletcher Street, Tamarama is approved subject to the conditions in Annexure A. ………………………. Jenny Smithson Commissioner of the Court Annexure A (488 KB, 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: 12 April 2019