MHN Design Union Pty Ltd v Waverley Council

Catchwords: DEVELOPMENT APPLICATION: semi-detached dwellings in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1, 4.2
Waverley Local Environmental Plan 2012, cll 4.1, 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2, 6.15

Cases Cited: Tenacity v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Category: Principal judgment

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

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/92457

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council of Development Application DA-345/2023 seeking consent for the demolition of existing structures, construction of a pair of four-storey semi-detached dwellings, in-ground swimming pool, landscaping and Torrens title subdivision at 15 Wonderland Avenue, Tamarama.

2. The appeal was initially listed before me for hearing on 2-3 April 2025. However, on 25 March 2025, the parties advised the Court that the parties had reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties, and sought the matter be re-allocated under s 34 of the Land and Environment Court Act 1979 (LEC Act) for conciliation.

3. The Court granted the application and arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 2 April 2025, at which I presided.

4. The decision of the parties involved the Court upholding the appeal and granting conditional development consent to the development application, subject to an adjournment to prepare amended plans consistent with the in-principle agreement.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 24 March 2025.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. 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.

8. 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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. The Development Application was lodged with the Council, with the written consent of the owner, on 23 November 2023, and was notified between 28 November 2023 and 12 December 2023.

11. The site is located in the R3 Medium Density Residential zone, according to the Waverley Local Environmental Plan 2012 (WLEP), in which residential

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maximise public transport patronage and encourage walking and cycling.

• To increase or preserve residential dwelling density.

• To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability.

• To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.

• To promote development that incorporates planning and design measures that reduce the urban heat island effect.

• To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

12. The proposal exceeds the height standard of 9.5m that applies to the site at cl 4.3(2) of the WLEP. The proposed development exceeds the height standard by a maximum of 600mm, with a resultant height of 10.1m. A written request authored by GSA Planning (the Height Request) in accordance with cl 4.6 of the WLEP seeks to justify the contravention by asserting that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the height standard are achieved, notwithstanding the non-compliance, and because there are sufficient environmental planning grounds to justify the contravention.

13. The relevant objectives at cl 4.3 of the WLEP are in the following terms:

(a) to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

…

(c) to maintain satisfactory solar access to existing buildings and public areas,

(d) to establish building heights that are consistent with the desired future character of the locality.

14. The proposal is consistent with the objectives of the height standard for reasons summarised as follows:

15. Firstly, the environmental amenity of neighbouring properties is preserved by limiting the location of openings, and maintaining the existing pattern of private open space, and maintaining the existing level of solar access, unaffected by those elements that exceed the height standard. Views are addressed by reference to a Visual Impact Assessment prepared by Urbaine Design Group (the VIA), which demonstrates the degree of impact proposed is acceptable when assessed in accordance with the planning principle in Tenacity v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.

16. Secondly, as there is no impact on solar access arising from the height exceedance, the degree of solar access is satisfactory.

17. Thirdly, when the proposal is seen in context with the streetscape, including more recent development in Wonderland Avenue, the height of the proposed development is consistent with the desired future character, despite the minor exceedance of the height standard at the front of the property by the balustrade.

18. Next, I am also satisfied that the environmental planning grounds advanced by the Height Request are sufficient to justify the contravention for the reasons set out in the Height Request under topic heading of Topography and Previous Excavation; Context and Compatibility, Safety and Privacy, and Good Design and Amenity.

19. Finally, while the provisions of cl 4.6 of the WLEP do not require consistency with the zone objectives to be demonstrated by the Height Request, I note that the zone objectives are set out in the Height Request, as are reasons by which the proposal achieves those objectives.

20. Having considered the Height Request and the extent and degree of the exceedance, which I regard as minor, I find the contravention of the Height standard to be justified and uphold the request to vary the height standard in this case.

21. A floor space ratio (FSR) of 0.6:1 Floor Space Ratio applies to the site, according to cl 4.4A of the WLEP. Before subdivision, a maximum FSR of 0.56842:1 applies to the parent lot. After subdivision, a maximum FSR of 0.83627:1 applies to the new lot known as 15A and 0.83715:1 to the new lot known as 15B. A technical non-compliance arises for the Amended Development Application, by virtue of applying the maximum FSR before subdivision.

22. A written request prepared in accordance with cl 4.6 of the WLEP, authored by GSA Planning and dated November 2024 (FSR Request) explains that the non-compliance arises from the FSR calculated prior to the subdivision.

23. I am satisfied the FSR Request demonstrates the objectives of the FSR standard at cl 4.4 are achieved notwithstanding the non compliance with the numerical standard at cl 4.4A of the WLEP. The relevant objectives are as follows:

…

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

21. In summary, the objectives are achieved because:

22. Firstly, the proposal is substantially consistent with the height permitted on the site, but for a small component of a planter and balustrade that do not otherwise contribute to the FSR of development on the site. The development is also consistent with the existing and emerging character of the streetscape, of two-to-three storeys with a flat and curved roof.

23. Secondly, the desired future character of the locality is reflected in recent approvals with similar characteristics and exceedances with which the proposed development is compatible.

24. Thirdly, the environmental amenity of neighbouring properties is preserved by limiting the location of openings, and maintaining the existing pattern of private open space, and maintaining the existing level of solar access consistent with a complying built form envelope. Views are addressed by reference to the VIA which demonstrates the degree of impact proposed is acceptable when assessed in accordance with the planning principle in Tenacity v Warringah Council [2004] NSWLEC 140.

25. The FSR Request also advances environment planning grounds that satisfy me that those grounds are sufficient to justify the contravention of the FSR standard, for reasons summarised as follows:

26. Firstly, the exceedance is a technical variation that relates only to the parent lot, and not to the lots arising from the subdivision. Had the Applicant lodged an application for subdivisions prior to a development application for development of semi-detached dwellings, no non-compliance would result.

27. The proposal is for development that is consistent with the existing and emerging character of the streetscape, and complies with the FSR for the site following subdivision.

28. Finally, the FSR sets out reasons that it asserts the objectives for development in the R3 zone are achieved. The proposal is for new semi-detached dwellings that provide for the needs of the community in a medium density residential zone, and in a manner that provides variety compared to single detached dwellings. The proposal complies with the requirement for car parking and preserves residential dwelling density.

29. I accept the reasons put forward in the FSR Request and find no reason it should not be upheld.

30. The minimum lot size resulting from a subdivision of land according to the relevant map at cl 4.1(2) of the WLEP is 232m². The proposal will result in two lots at 244.30m²(apartment 15A) and 243.50 m² (apartment 15B) respectively.

31. The site is located in an area identified with Class 5 Acid Sulfate Soils, and is shown on the relevant map at cl 6.1(2) of the WLEP within 500m of class 4 soils. However, the Geotechnical Investigation prepared by Crozier dated June 2023 (Geotechnical Investigation) notes that groundwater was not intersected during site investigations and will not be encountered during the works when the site location and topography are read in conjunction with the proposed depth of excavation.

32. I am also of the view that the matters for consideration at cl 6.2(3) of the WLEP are adequately addressed in the documents on which Applicant relies, including:

33. Geotechnical Investigation

34. Landscape plans, prepared by Nelson Thomas

35. Stormwater Concept Plans, prepared by Smart Structures

36. On the basis of the landscape calculations prepared by Nelson Thomas showing the control for deep soil of 50% and landscaped area of 20% of the site is exceeded, I am satisfied that water permeable surfaces have been maximised on the land, that no additional impervious surfaces result, and that adverse impacts of stormwater run off are avoided, in accordance with cl 6.15 of the WLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The Arboricultural Impact Assessment Report prepared by Stuart Noble Arboriculture dated 30 August 2024 records that one tree, Tree 1, a Banksia Integrifolia, is proposed for removal. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the statement made in the Statement of Environmental Effects, and the agreed position of the parties stated in the jurisdictional statement prepared to assist the Court, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

31. The application is accompanied by a BASIX certificate (Cert No. 1401715M_03, prepared by The House Energy Rating Company of Australia Pty Ltd and dated 13 February 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

32. The Court notes the terms at s 4.2(1)(c) of Sustainable Buildings SEPP save the development application from the need to comply with the requirement at s 2.1(5) because the original BASIX Certificate was lodged on 10 August 2023, and so was prepared prior to the commencement of Sustainable Buildings SEPP, and prior to the introduction of requirements for quantification of embodied emissions attributable to the development by s 2.1(5).

Conclusion

33. 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.

34. 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.

35. The Court notes that:

36. The Respondent, Waverley Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA-345/2023 to rely on the documents listed below:

| TAB | DOCUMENT | DATE | | 1 | Architectural Plans prepared by MHN Design Union • DA0000: Cover page (rev 5) • DA1002: Site & Roof Plan (rev 7) • DA2000: Basement Plan (rev 8) • DA2001: Ground Floor Plan (rev 7) • DA2002: Level 1 Floor Plan (rev 7) • DA2003: Level 2 Floor Plan (rev 7) • DA3000: Elevation North (rev 6) • DA3001: Elevation South (rev 6) • DA3002: Elevation East (rev 6) • DA3003: Elevation West (rev 6) • DA3100: Section A (rev 6) • DA3101: Section B (rev 6) • DA6000: External Finishes (rev 2) • DA9000: GFA Calculations (rev 6) • DA9001: Landscape Calculations (rev 5) • DA9100: Height Plane (rev 4) • DA9101: Height Plane (rev 4) | Up to 11 February 2025 | | 2 | Updated Draft Plan of Subdivision prepared by David Carey | 26 June 2023 | | 3 | Clause 4.6 (FSR) prepared by GSA Planning | November 2024 | | 4 | Clause 4.6 (Height) prepared by GSA Planning | November 2024 | | 5 | Updated Landscape Plans prepared by Nelson Thomas (Rev C) • DA001: Landscape and Planting Plans (Basement and Ground Floor plans) • DA002: Landscape and Planting Plans (Level 1 and Level 2), Detail Drawings and Landscape Calculations • DA003: Lighting Plan (Basement, Ground Floor, Level 1 and Level 2) | 14 February 2025 | | 6 | Arboricultural Impact Statement prepared by Sturt Noble | 30 August 2024 | | 7 | Visual Impact Assessment prepared by Urbaine Design Group • Assessment Report • Appendix A: Visual Impact Images | 28 August 2024 | | 8 | BASIX Certificate No. 1401715M_03 | 13 February 2025 | | 9 | NatHERS Certificates: • Certificate for 15A No.0011712015 • Certificate for 15B No.0011712023 • Summary Certificate | 13 February 2025 | | 10 | BASIX Stamped Architectural Plans | |

2. The Applicant filed the Amended Application with the Court 3 April 2025.

Orders

36. The Court orders that:

37. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of the Waverly Local Environmental Plan 2012, prepared by GSA Planning and dated November 2024, is upheld.

38. The written request seeking to justify the contravention of the floor space ratio development standard at cl 4.4 and cl 4.4A of the Waverly Local Environmental Plan 2012, prepared by GSA Planning and dated November 2024, is upheld.

39. The Applicant is to pay the Respondent's costs 'thrown away' in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment in the sum of $20,000.

40. The appeal is upheld.

41. Development Application No. DA-345/2023 for demolition of existing structures, construction of a pair of four storey semidetached dwellings, in-ground swimming pool, landscaping and Torrens Title subdivision, at Lots 2-3 and Common Property in Strata Plan 15935, 15 Wonderland Avenue, Tamarama NSW 2026 determined by the grant of consent subject to the conditions of consent at Annexure 'A'.

T Horton

Commissioner of the Court

Annexure A (486894, pdf)

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Amendments

08 May 2025

Corrected Applicant party name