MHN Design Union Pty Limited v Waverley Council

Texts Cited: Waverley Development Control Plan 2022

Category: Principal judgment

Parties: MHN Design Union Pty Limited (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
A Seton (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitor:
Marsdens Law Group (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2024/435373

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Waverley Council of development application DA-404/2024 (the DA). The DA seeks consent for alterations and additions to an existing dual occupancy on land at 57A and 57B Wallangra Road, Dover Heights, NSW, 2030 (the site).

2. The proposed development includes:

3. Demolition of portions of the existing front façade;

4. Enlargement of the existing garages with integrated planter above;

5. Relocated front entries and pathways;

6. Reconfigured front facades; and

7. Landscaping.

8. The site comprises one (1) allotment that is legally identified as Strata Plan 92396. The proposal involves work relating to Lots 1 and 2, in addition to common property.

9. The DA was lodged with the Respondent on 16 August 2024. On 22 November 2024, the Applicant filed Class 1 proceedings with the Court

10. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 13 January 2025.

11. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 and 2 May 2025. I presided over the conciliation conference. One submission had been received in response to the notification of the DA. The submitter did not attend the on-site view.

12. At the commencement of the conciliation conference, the parties confirmed that they were anticipating reaching an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

13. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties reached a s 34 agreement on 2 May 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.

14. The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 2 May 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

15. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

16. In particular the amended DA addresses the following matters:

An increase in length of the northeast and southwest car spaces within the garage to be 5.4 metres;

An increase in the side setbacks of the garage from 1.423m to 1.6m and corresponding reduction in the width of the garages;

Provision of an indentation in between the garages to modulate the street facing elevation; and

Removal of the operable panel screen on the upper level street facing balcony.

12. 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. 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.

13. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

14. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

15. The parties advise that the DA was made with the written consent of the owners of the subject site and the Owners Corporation for Strata Plan No. 92396.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

16. The DA was publicly notified from 8 October 2024 to 22 October 2024. One submission was received during the notification period.

17. The parties advise that the Court would be satisfied that the concerns raised by the objector have been addressed in the amended DA.

Conditions

18. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Waverley Local Environmental Plan 2012

19. The Waverley Local Environmental Plan (the LEP) applies to the site and to the proposed development. The site is zoned R2 Low Density Residential (R2 zone) pursuant to cl 2.2 of the LEP; and

20. The proposed development consists of alterations and additions to a dual occupancy which is permissible with consent within the R2 Low Density Residential zone;

21. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

22. The site is subject to cl 4.3 of the LEP in relation to a maximum height of 8.5m as shown in the Height of Buildings (HoB) Map in the LEP. The development does not alter the existing maximum height of the building;

23. The site is subject to cll 4.4 and 4.4A of the LEP in relation to the maximum floor space ratio (FSR) of 0.5:1 as shown in the Floor Space Ratio Map in the LEP and also referred to in cl 4.4A of the LEP. The gross floor area of existing building is 496.3m2 which equates to an FSR of 0.804:1. The amended DA proposes an additional gross floor area of 7.23m2 which equates to a FSR for the proposed building of 0.82:1;

24. The Applicant submitted a written request pursuant to cl 4.6 of the LEP for the amended DA prepared by Tony Moody dated 1 May 2025. The parties have advised that the Court would be satisfied the Applicant has demonstrated that:

(a) Compliance with the development standard is unreasonable or unnecessary in the circumstances; and (b) There are sufficient environmental planning grounds to justify the contravention of the development standard.

6. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the maximum FSR standard is acceptable noting the following points about the additional floor space sought (as part of the proposed alterations and additions):

(a) Comprises proposed motorbike/bicycle parking areas and bin storage areas for each dwelling; (b) Is located at ground level and significantly set back from the site’s frontage and at a greater side setback than that required by the Waverley Development Control Plan 2022 (the DCP); (c) Will not be visible from the public domain or adjoining properties; and (d) Would otherwise be a void within the existing approved building envelope.

7. I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the FSR development standard, notwithstanding the FSR exceedance for the reasons provided within the Applicant’s written request, which I adopt;
8. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

(a) The proposed additional floor area which constitutes the breaching portion of the floor space will not generate additional or adverse bulk, scale and height given that the proposed breaching portion is at ground level and is well setback from adjoining properties; (b) The proposed breaching portion of the floor space will not generate any adverse amenity impacts on adjoining properties or the public domain; (c) The provision of the proposed motorbike and bicycle storage area within the breaching portion is in accordance with the Respondent’s desired outcomes for alternative forms of transport under the DCP; and (d) Locating the waste bin area within the building envelope (and within the breaching portion of the floor space) is a preferred outcome and a positive impact on residential amenity of the area.

9. Approval of the proposed development will be in the public interest for the reasons provided above, and because the proposed development is consistent with the objectives for the FSR development standard and for development within the R2 zoning of the subject site for reasons provided within the Applicant’s written request, which I also adopt.
10. Clause 6.15 of the LEP is concerned with stormwater management. The parties advise that the Court can be satisfied that in accordance with cl 6.15(3) the proposed development:

(a) Plans for the collection and disposal of all stormwater from the property have been prepared by National Engineering Consultants and accompany the Class 1 Application; (b) The proposal provides for collected stormwater to be disposed of both to the street drainage system and on-site via a rainwater tanks; and (c) Council’s engineer has assessed the proposed development and concludes it is satisfactory subject to conditions, which are included in the proposed conditions.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW. No trees are proposed to be removed in the proposed development.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

22. The parties have advised that:

23. Due to the historical use of the land for residential purposes, the nature of the application and the recently approved and construction of the dwellings on the site, the Court would be satisfied that it is highly unlikely that the land is contaminated, and that the land is suitable for the proposed development; and

24. The DA does not propose a change of use and s 4.6(2) of the Resilience SEPP is therefore not relevant.

25. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

24. The parties advise that:

25. The development is for BASIX development as defined in the Dictionary of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) because it is:

“(c) development that involves the alteration of a BASIX building, if the estimated development cost is $50,000 or more”

2. BASIX Certificate No. A1753759 prepared by Outsource Ideas Pty Ltd dated 01 July 2024 was submitted with the DA;
3. Section 37(5) of the EPA Regulation relevantly states in respect of an amended development application:

“(5) If the amendment will result in the development differing materially from the description contained in the BASIX certificate that accompanied the original development application, the application must be accompanied by a new BASIX certificate that takes account of the amendment”

4. The amendment to the application does not result in the development differing materially from the description contained in the BASIX certificate;
5. Section 2.1(5) of State Environmental Planning Policy (Sustainable Buildings) 2022 provides:

“(5) Development consent must not be granted to development to which the standards specified in Schedule 1 or 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified”

6. The embodied energy report for the proposed development forms part of the online BASIX tool which is covered by the BASIX Certificate.

Conclusion

25. Having considered the advice of the parties provided above at [15]-[24], I am satisfied that:

26. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

27. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

28. approval of the proposed development is in the public interest.

29. Further, 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.

30. 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.

Notes

28. The Court notes:

29. That Waverley Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-404/2024 made on 1 May 2025 to rely on the amended plans and documents specified below:

| DOCUMENT | DATE | | Clause 4.6 Written Request re Floor Space Ratio, prepared by Tony Moody | 1 May 2025 | | Architectural Plans prepared by MHNDUnion, Project No.2408 as follows: A0000 Rev.C Cover Plan A0001 Rev.C Site Plan A0003 Rev.C Ground Floor Plan A0004 Rev.C First Floor Plan A0006 Rev.C Street Elevation A0007 Rev.C North Elevation A0008 Rev.C South Elevation A0009 Rev.C Sections A0010 Rev.C External Finishes Schedule | 1 May 2025 |

Orders

29. The Court orders that:

30. The appeal is upheld.

31. The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for the floor space ratio control contained within cll 4.4 and 4.4A thereof, as prepared by Tony Moody dated 1 May 2025, is upheld.

32. Development consent is granted to Development Application DA-404/2024 for alterations and additions to an existing dual occupancy on the land at 57A and 57B Wallangra Road, Dover Heights, NSW, 2030, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A (371 KB, pdf)