Andrews AV Pty Ltd & Anor v Waverley Council

Category: Principal judgment

Parties: Andrews AV Pty Ltd (ACN 657 868 276) (First Applicant)
MHN Design Unon Pty Ltd (ACN 003 717 682) (Second Applicant)
Waverley Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (First and Second Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb (Respondent)

File Number(s): 2024/400803

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal direct to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for the approval of Modification Application No DA-285/2023/B (the MOD) to modify development consent No DA-285/2023 (approved development) granted by the Court on 29 October 2024.

2. The approved development involves the demolition of existing structures and the construction of a multi-level unit development and ancillary work on land at 1 to 7 Andrews Avenue and 26 Glen Street, Bondi, NSW 2026 being the current existing lots (the Site):

3. Lot 1 in DP 79716 (1 Andrews Ave)

4. Lot 1 in DP 1042187 (3 Andrews Ave)

5. Lot 1 in DP 216695 (5 Andrews Ave)

6. Lot 2 in DP 216695 (7 Andrews Ave)

7. Lot 1 in DP 552406 and Lot 1796 in DP 822255 (26 Glen St)

8. The modifications sought in the MOD are outlined comprehensively in the Statement of Environmental Effects prepared by GSA Planning dated 28 October 2024 and filed as part of the Class 1 Application.

9. The respondent filed a Statement of Facts and Contentions on 13 December 2024 (SOFC).

10. The Applicant provided the Respondent with amended plans which have subsequently been further amended resulting from discussions between the parties at the s 34 conciliation conference on 31 January 2025. The Final Plans and other documents now form part of an agreement under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act).

11. The Final Plans resolved Waverly Council’s (Council) Contentions by:

12. providing an additional 1500mm setback within the eastern articulation zone including pulling back the roof above;

13. providing for additional space for vehicular movements within the Site on Glen Lane;

14. providing for additional privacy screening;

15. amending the solid to void ratio in respect of glazing on the upper level;

16. providing additional planting in the increased articulation area; and

17. provision of details relating to the air conditioning plant enclosure on the NW corner of the Site; and other consequential changes.

18. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on-site and at Council chambers.

19. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. Council accordingly approved the amendment to the Applicant’s modification application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and approve the modification of the approved development.

20. Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

21. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification to development consent No DA-285/2023.

22. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement).

Satisfaction as to Jurisdiction

12. Taking into account the parties’ advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below. A reference to the modification application embraces the modification application as amended by the Final Plans referred to above.

Section 4.55 – Environmental Planning and Assessment Act 1979

13. I accept and agree with the parties detailed analysis and conclusions in the Statement at paragraphs [9] to [21] of the jurisdictional test under s 4.55(2) of ‘substantially the same development’ and the requirements of s 4.55(3) and do not need to reproduce that analysis in full in the judgment.

14. In short, the modification application was made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties agreed, and I accept that:

15. The development to which the consent as modified relates is substantially the same development as the development for which the Consent was originally granted;

16. The Modification Application was appropriately notified; and

17. Submissions received in response to the notification of the Modification Application were considered.

18. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against:

19. Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal; and

20. The reasons given by the consent authority for the grant of the Consent.

Waverley Local Environment Plan 2012 (WLEP)

16. The Site is zoned R3 Medium Density Residential under the WLEP and development for the purposes of the residential multi-unit building is permissible in the R3 zone. Demolition of the existing structures may be carried out with development consent under cl 2.7 of the WLEP.

17. In considering the WLEP controls that are engaged the parties agree and the Court accepts the parties’ conclusions that:

“The Final Plans provide a correlation between height and bulk noting that the height and substantive building envelope have not changed, ensure a compatibility between the bulk and scale as required by the desired future character of the area noting that all setback remain the same and the envelope of the building save for the areas of articulation remain the same and overall preserve the environmental amenity of adjoining neighbours.

…the proposed development as amended by the Final Plans is consistent with the relevant clauses of the WLEP.”

18. The detailed approved development consent and a description of modification of that development consent is set out on the first page of Annexure A to this judgment.

Other State and Local Environmental Planning Instruments

19. I note that statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant EPIs and planning controls.

20. However, I note the following SEPP requirements of particular relevance to the changes to the approved development and quote in full from the Statement as follows:

State Environmental Planning Policy (Sustainable Buildings) 2022

“[35] In accordance with the definition in section 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) the Modification Application is a BASIX development as it involves the erection of a BASIX building.

…

[37] Pursuant to section 27 of the EPA Reg, a BASIX Certificate must be issued for the Modification Application.

[38] BASIX certificate no. 1411135M_04 was prepared and provided with the Modification Application as amended by the Final Plans.

[39] A condition is included in the agreed conditions of consent at Annexure B to the s34 Agreement, requiring compliance with the commitments indicated in the BASIX Certificate as required by section 27 of the EPA Reg.

[40] The parties agree and the Court accepts that the updated BASIX certificate meets the relevant requirements of the EPA Reg.”

State Environmental Planning Policy No 65 (Design Quality of Residential Apartment Development) (SEPP65) and the Apartment Design Guide

“[43] SEPP 65 was repealed by section 3 of the State Environmental Planning Policy Amendment (Housing) 2023 (**‘**Housing Policy’), with effect from 14 December 2023. The 2023 Policy inserted section 8(2A) into Schedule 7A of the State Environmental Planning Policy (Housing) 2021 (‘Housing SEPP’), which provides that amendments made to the Housing SEPP do apply to the DA, which was lodged before the relevant commencement date of 14 December 2023.

[44] The DA as amended by the Final Plans is supported by a Design Verification Statement prepared by MHNDUnion Architects dated 14 February 2025.

[45] The parties agree that the Final Plans are consistent with the provisions of the State Environmental Planning Policy (Housing) 2021 and that the Design Verification Statement as referred to above is prepared in compliance with the Environmental Planning and Assessment Regulations 2021.”

Public Participation

21. The Modification Application was notified in accordance with the Council’s Community Participation Plan between 20 November 2024 and 11 December 2024. Six submissions were received on behalf of members of the community and their concerns summarised in Council’s SOFC.

22. Three residents made submissions to the s 34 conciliation conference on site and raised issues of traffic, view loss, and non-compliances with the WLEP and Waverley Development Control Plan 2022.

23. The issues raised in the residents’ submissions and the oral submissions made to the s 34 conciliation conference have been considered by the parties and the Final Plans incorporate some changes to address the concerns raised including:

24. Additional articulation;

25. Additional planting;

26. Management of privacy issues; and

27. Management of acoustic issues associated with plant and equipment.

28. I am satisfied that the objectors reasonable concerns were considered by the parties, and the objectors were accorded procedural fairness.

Conclusion

25. Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations

26. The Court notes that:

(i) The Respondent, as the relevant consent authority, has agreed under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its modification application in accordance with the documents and plans in Annexure A.

Orders

27. The Court orders:

28. The appeal is upheld.

29. Modification application No DA-285/2023/B is approved.

30. Development consent No DA-285/2023 is modified in the terms set out in Annexure A.

31. Development consent No DA-285/2023, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.

L Byrne

Acting Commissioner of the Court

**********

Annexure A.405 KB.pdf

Annexure B.784 KB.pdf