Miehs v Waverley Council

JUDGMENT

1. COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Applicant appeals the deemed refusal of their development application DA-432/2022 by the Respondent, Waverley Council. The development application, as amended, seeks consent for alterations and additions to the existing residential flat building on the site. The works include demolition and reconstruction of the attic level, rear car garages, and addition of the internal lift and modifications to the internal layout and rear garden. The development is proposed at 316 Bondi Road, Bondi (SP 38333).
2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 27 July 2023. That conciliation conference was terminated on 27 September 2023, and the matter was listed for hearing.
3. Following the conciliation conference, the parties continued without prejudice discussions and on 9 October 2023 sought orders for a further conciliation conference. A further conciliation conference was listed for 20 October 2023. I presided over the further conciliation conference. 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 for the development application, as amended, and granting development consent subject to the annexed conditions of consent.
4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. The development application was lodged by Studio Johnson, as agent for the Applicant. The Applicant (as principal) has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43]. 2. The development application was notified and advertised between 12 and 26 October 2022 in accordance with the Waverley Community Participation Plan 2019 (Participation Plan). One submission was received which raised concerns about the operation of the proposed car stackers, the impact of the height of the development and potential impacts on privacy. The development application is accompanied by an acoustic report that addresses the potential noise impact of the car stackers. I am satisfied that the submission has been considered in the determination of the development application pursuant to s 4.15(1)(d) of the EPA Act. Consistent with the Participation Plan, the amended development application was not renotified as the Respondent formed the opinion that it resulted in a reduced environmental impact. 3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site's history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development. 4. Further, pursuant to Ch 2 of SEPP RH the site is not identified as a 'coastal use area', a 'coastal vulnerability area' or 'coastal wetlands and littoral rainforest area'. 5. Pursuant to Sch 7 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the development is a BASIX affected building. The amended development application is accompanied by a BASIX certificate, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004. 6. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 (SEPP 65) applies as the development application comprises a residential flat building: cl 4(1) SEPP 65. The amended development application is accompanied by a statement prepared by architect Conrad Johnston that confirms that: first, the qualified designer designed or directed the design of the development; second, how the design quality principles are achieved; and finally, how the objectives in Parts 3 and 4 of the NSW Planning and Environment Apartment Design Guide 2015 have been achieved. 7. Waverley Local Environmental Plan 2012 (LEP 2012) applies to the land. Pursuant to LEP 2012 the land is zoned R3 Medium Density Development. As required by cl 2.3(2) of LEP 2012 in determining the development application I have had regard to the objectives of the zone. The objectives of the R3 Medium Density Residential zone are: - to encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with a 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. 1. The proposed development, alterations and additions to a residential flat building is a use permitted with consent in the zone. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2012. 2. Pursuant to cl 4.3 'Height of Buildings' in LEP 2012 the maximum height limit applicable to the site is 12.5m. The proposed development does not comply with this standard and relies on cl 4.6 of LEP 2012 to vary the height standard to permit a height of 14.82m. The variation to the height standard is centred on an area of noncompliance contained within the roofline of the existing residential flat building. The Applicant relies on a written request prepared by ABC Planners dated August 2023 in support of the variation to the standard. The written request addresses the matters set out at cl 4.6(3) of LEP 2021 including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action). 1. Pursuant to cl 4.6(4)(a) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out … 1. Only if the requirements in subcll 4.6(3) and (4) are met will the power in subcl 4.6(2), to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23] (Rebel MH). 2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the height control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard. 3. I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the development standard and the objectives for development within the R3 Medium Density Residential Zone in which the development is proposed to be carried out. 4. Finally, I accept, after a consideration of the matters identified in cl 4.6(5) of LEP 2012, that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020. 5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the maximum height standard in LEP 2012. 1. Pursuant to cl 4.4 'Floor Space Ratio' (FSR) in LEP 2012 the maximum FSR applicable to the site is 0.9:1. The proposed development does not comply with this standard and relies on cl 4.6 of LEP 2012 to vary the height standard to permit an FSR of 1.09:1. The variation to the FSR arises due to the noncompliant existing building. The proposed development proposes no increase in noncompliance. The Applicant relies on a written request prepared by ABC Planners dated August 2023 in support of the variation to the standard. The written request addresses the matters set out at cl 4.6(3) of LEP 2021 including having regard to the tests set out in Initial Action. 1. Pursuant to cl 4.6(4)(a) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out … 1. Only if the requirements in cl 4.6(3) and (4) are met will the power in cl 4.6(2), to grant consent to development that contravenes the development standard, be enlivened: RebelMH at [23]. 2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the height control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard. 3. I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the development standard and the objectives for development within the R3 Medium Density Residential Zone in which the development is proposed to be carried out. 4. Finally, I accept, after a consideration of the matters identified in cl 4.6(5) of LEP 2012, that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020. 5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the maximum FSR standard in LEP 2012. 1. Pursuant to cl 6.1 in LEP 2012 the site is marked as class 5 land on the Acid Sulfate Soils Map. The parties agree and I accept that the proposed earthworks are minor and are unlikely to lower the water table below 1m Australian Height Datum. 2. Pursuant to cl 6.2 Earthworks in LEP 2012 in determining the development application I have given consideration to the matters at subcl (3). I am satisfied given the minor nature of the works none of those matters warrant the refusal of the development application.