Land and Environment Court New South Wales Medium Neutral Citation: Landa-Wrublewski v Waverley Council [2019] NSWLEC 1546 Hearing dates: Conciliation conference on 11 October 2019; 18 October 2019; 29 October 2019 Date of orders: 19 November 2019 Decision date: 19 November 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1(a) at Annexure 'A'. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), 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. (3) The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 ("WLEP"), prepared by ABC Planning Pty Ltd dated October 2019 (contained at Annexure 'C'), seeking to justify the contravention of the height of buildings development standard in clause 4.3 of the WLEP is upheld. (4) The Applicant's written request under clause 4.6 of the WLEP, prepared by ABC Planning Pty Ltd dated October 2019 (contained at Annexure 'D'), seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the WLEP is upheld. (5) The appeal in respect of the property known as 21 Busby Parade, Bronte, is upheld. (6) Development Application DA-383/2018 for alterations and additions to a residential flat building, including an additional floor level, at 21 Busby Parade, Bronte is approved subject to the conditions at Annexure 'A'. 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 Environment Plan 2012 Category: Principal judgment Parties: Sara Landa-Wrublewski (First Applicant) Harry Max Wrublewski (Second Applicant) Waverley Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicants) J Ede (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/380700 Publication restriction: No Judgment 1. COMMISSIONER: Sara and Harry Wrublewski (the Applicants) have appealed the deemed refusal of Waverley Council (the Respondent) of their development application for alterations and additions to a residential flat building, including an additional floor (the proposed development), at 21 Busby Parade, Bronte (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. 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 11, 18 and 29 October 2019, and I presided over the conciliation conference. 4. 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 consent to the development application, subject to conditions. 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 the function under s 4.16 of the EP&A to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. the reliance of the Applicants on its existing use rights in relation to the use of the Subject Site for a residential flat building, which would otherwise be a prohibited use within the R2 Low Density Residential zoning of the Subject Site; 2. two written requests by the Applicants, prepared in accordance with the provisions of cl 4.6 of Waverley Local Environment Plan 2012 (WLEP), to vary the development standards under cll 4.3 and 4.4 of WLEP concerning, respectively, the height of buildings and the floor space ratio standards applicable to the Subject Site under its R2 Low Density Residential zoning; 3. the requirements of cl 6.2 concerning earthworks that require that before granting development consent, the consent authority must give consideration to the matters identified in cl 6.3(3). 1. The parties have explained how the jurisdictional prerequisites have, in their opinion, been satisfied because: 1. they agree that the Applicants do have existing use rights for use of the Subject Site for the purposes of a residential flat building that would otherwise be a prohibited use on the Subject Site which is zoned R2 Low Density Residential; 2. in relation to the two written requests for vary the development standards under cll 4.3 and 4.4 of WLEP: 1. the proposed development is consistent with the objectives of the height of buildings and floor space ratio standards, and of the R2 zoning, applicable to the Subject Site under the provisions of WLEP; 2. there are sufficient environmental planning grounds to justify the requested variation to the development standards under cll 4.3 and 4.4 of WLEP for reasons related to streetscape, visual bulk and scale, heritage, view sharing, privacy, and the management of potential impacts in relation to overshadowing and landscaping; 3. the proposed development is in the public interest because, notwithstanding the contravention of the standards in cll 4.3 and 4.4 of WLEP: 1. it achieves the objectives of the standards, 2. it achieves the objectives of the zone in which the Subject Site is located, and; 3. there are sufficient environmental planning grounds to justify the contravention of the standard. 1. the requirements of cl 6.3(3) of WLEP concerning earthworks have been considered and the Applicant's proposed development is acceptable in relation to the matters requiring consideration in that clause of WLEP; 1. Having considered the advice of the parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am also 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, for reasons provided at [7] and [8]. 3. 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. 4. The Court orders: 1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1(a) at Annexure 'A'. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), 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. 3. The Applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 ("WLEP"), prepared by ABC Planning Pty Ltd dated October 2019 (contained at Annexure 'C'), seeking to justify the contravention of the height of buildings development standard in clause 4.3 of the WLEP is upheld. 4. The Applicant's written request under clause 4.6 of the WLEP, prepared by ABC Planning Pty Ltd dated October 2019 (contained at Annexure 'D'), seeking to justify the contravention of the floor space ratio development standard in clause 4.4 of the WLEP is upheld. 5. The appeal in respect of the property known as 21 Busby Parade, Bronte, is upheld. 6. Development Application DA-383/2018 for alterations and additions to a residential flat building, including an additional floor level, at 21 Busby Parade, Bronte is approved subject to the conditions at Annexure 'A'. ………………………. M Chilcott Commissioner of the Court Annexure A (137 KB, pdf) Annexure C (1.93 MB, pdf) Annexure D (2.05 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: 19 November 2019