RNB Property Group Pty Ltd v Waverley City Council [2019] NSWLEC 1169

Land and Environment Court New South Wales

Medium Neutral Citation: RNB Property Group Pty Ltd v Waverley City Council [2019] NSWLEC 1169 Hearing dates: Conciliation conference on, 12 February 2019, 8 March 2019, 2 April 2019, 3 April 2019, and 8 April 2019 Date of orders: 11 April 2019 Decision date: 11 April 2019 Jurisdiction: Class 1 Before: Horton C Decision: See [23] below Catchwords: DEVELOPMENT APPEAL against deemed refusal –conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 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: RNB Property Group (Applicant) Waverley Council (Respondent) Representation: Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/231032 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-214/2018 for the demolition of a single storey building and construction of a four-storey shop top housing development at 97 Glenayr Avenue, Bondi Beach above car parking at ground and basement level. 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 12 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 included agreement of the applicant to remove the top level of the proposal, and for other amendments to the proposal. 4. 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 was filed with the Court on 8 April 2019. 5. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement. 6. The amended plans were re-notified to the neighbouring property at No.95 Glenayr Avenue. No objections were received. 7. 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. The development also seeks to justify the contravention of development standards pursuant to cl 4.6 of the WLEP. Consequently, 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 orders at [23]. 8. 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 filed with the Court and dated 29 March 2019. 9. 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 ("Initial Action")) for the following reasons. 10. Clause 4.4 of the WLEP provides for a maximum Floor Space Ratio (FSR) of 1:1 on the subject site while the proposed development will result in an FSR of 1.44:1. 11. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters found in cl 4.6(3), including: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard 1. The applicant's written request justifies the contravention of the FSR development standard on the basis that; 1. The proposal is compatible in its density, bulk and scale when seen in context with adjacent buildings ranging from two to three storeys in height. 2. The environmental amenity of neighbouring properties is preserved through acoustic and visual treatment. 3. The amenity impact resulting from the bulk and scale does not result in impacts beyond a compliant built form. 1. The applicant must also satisfy the Court that there are sufficient environmental planning grounds to justify contravening the development standard in the written request under cl 4.6. I am satisfied that sufficient planning grounds exist to justify the contravention due to the consistency in streetscape and frontage that results from the proposal, and that strict compliance with the development standard would not result in a better outcome for the development. 2. The parties agree that the proposed development exceeds the height of building development standard set out in cl 4.3 of the Waverley Local Environment Plan 2012 (WLEP). The applicant seeks a variation to the development standard in cl 4.3 of the WLEP and has lodged a written request pursuant to cl 4.6 filed with the Court and dated 26 March 2019. 3. Clause 4.3 of the WLEP provides for a maximum height of buildings of 9m on the subject site, while the proposed development is a maximum height of 11.3m when measured at the topmost ridge of two clerestory windows. A lift over run and parapet also exceed the maximum height to a lesser extent. 4. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that; 1. A current approval for development on the site is for a building with a height of 11.45m, representing a reduction of 150mm than currently approved. 2. The proposed is a three storey built form that is compatible with the building heights of approved developments on neighbouring sites. 3. The skylights are setback 3m from Glenayr Avenue, and the lift overrun is located more than 13m from the Glenayr Avenue frontage, minimising the view from the street. 1. The applicant must also satisfy the Court that there are sufficient environmental planning grounds to justify contravening the development standard in the written request under cl 4.6. I am satisfied that sufficient planning grounds exist to justify the contravention due to the exceedance in height resulting in no adverse impacts on the amenity of neighbouring properties, will not be discernible from the public domain, and will result in a consistent level in the streetscape. 2. In my view, and despite the non-compliance, the development achieves the objectives of the development standard and the zoning. 3. The proposed development is Residential Apartment Development, and so the State Environmental Planning Policy No.65 – Design Quality in Residential Apartment Development applies. Clause 28(2) requires that consent must not be granted if the development or modification does not demonstrate that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. 4. Where an application relates to residential apartment development, cl 50 (1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied that the statement signed by the architect, Mr Simon Hanson of Bureau SRH is in a complying form. 5. 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. 6. 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. 7. 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 is granted leave to rely upon the amended plans and documentation listed in condition 1 of Annexure "A". 2. 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 $15,000 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 maximum floor space ratio development standard pursuant to clause 4.4 of WLEP dated 29 March 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 approved. 4. 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 height of buildings development standard pursuant to clause 4.3 of WLEP dated 26 March 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 approved. 5. The appeal is upheld. 6. Development Application DA-214/2018 for the demolition of a single storey building and construction of a three-storey shop top housing development comprising 1 ground level commercial space, 9 apartments above and car parking at ground and basement level at 97 Glenayr Avenue, Bondi Beach is approved subject to the conditions at Annexure "A". ………………………. Tim Horton Commissioner of the Court Annexure A Plans