RNB Glenayr Pty Ltd v Waverley Council

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") by RNB Glenayr Pty Ltd ("the Applicant") against the Respondent's deemed refusal of development application DA/296/2019. The development application seeks consent for demolition of a single storey building and construction of a four storey shop top housing development at 97 Glenayr Avenue, Bondi Beach ("the site") (Lot 1 DP 1012730). As amended, the development comprises basement parking, a ground floor commercial space, and nine residential apartments.
2. The amended development application also incorporates an offer to enter into a Voluntary Planning Agreement ("VPA") for payment of a monetary contribution to Waverley Council. The agreed conditions of consent require that, prior to the issue of an Occupation Certificate, the parties enter into an agreement consistent with the letter of offer to enter into the VPA dated 21 February 2021.
3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.
4. The appeal was listed for conciliation on 2 March 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 ("LEC Act"). At the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 2 March 2021.
5. 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 have formed this state of satisfaction for the following reasons: 1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 ("EP&A Regulation"), consent has been provided by the owners of the land the subject of the Development Application. 2. State Environmental Planning Policy No 55 - Remediation of Land ("SEPP 55") applies to the site. Clause 7(1) of SEPP 55 requires the consent authority to consider whether the site is contaminated. The Applicant has prepared and filed a Detailed Site Investigation statement prepared by Aargus dated 13 March 2019 and an Additional Site Investigation statement prepared by Aargus dated 7 December 2020. I accept that following remediation, which is required by the conditions of consent, the land is suitable for the proposed use. 3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. As the proposed development is, in part, residential apartments, State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65") applies. It requires the consent authority to take into consideration, firstly, the design quality of the development when evaluated in accordance with the design quality principles (at sub cl 28(2)(b)), and secondly, the provisions of the Apartment Design Guide ("ADG") (at sub cl 28(2)(c)). Further, consent must not be granted unless the consent authority, or the Court on appeal, is of the opinion that the proposed development demonstrates adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and to the objectives specified in the ADG. In determining the development application, I have had regard to these matters and have formed the opinion that the proposed development demonstrates that it has had adequate regard to the design quality principles. 5. Further, s 50(1AB) of the EP&A Regulation requires that a qualified designer, must provide the consent authority, with a statement that they designed, or directed the design of the development. Such a statement has been provided by Simon Hanson Reg No. 6739. 6. Pursuant to Waverley Local Environmental Plan 2012 ("WLEP") the site is zoned B1 Neighbourhood Centre. Shop top housing is a form of development which is permissible with consent in the zone. Pursuant to cl 2.7 of WLEP, demolition is permissible with consent. 7. In determining the development application, I have had regard to the objectives of the B1 Neighbourhood Centre zone. 8. The development application seeks a variation to the maximum height control standard of 9m and proposes a maximum height of 11.25m. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by GSA Planning in September 2019 ("the Height Request"). The Height Request seeks a variation to the height development standard. I have reviewed the Height Request and, in accordance with cl 4.6 of WLEP, I am satisfied that: 1. The Height Request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP). 2. The Height Request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of WLEP). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B1 Neighbourhood Centre zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met. 5. On appeal, the Court has the power under cl 4.6(2) of WLEP to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of WLEP (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [29]). 6. Pursuant to cl 4.6(5) of WLEP I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 7. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. Further, the development application seeks a variation to the maximum floor space ratio ("FSR") control. The maximum FSR standard applicable to the site is 1:1. The application seeks a total FSR of 1.33:1. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by GSA Planning in March 2021 ("the FSR Request"). I have reviewed the FSR Request and, in accordance with cl 4.6 of WLEP, I am satisfied that: 1. The FSR Request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP). 2. The FSR Request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of WLEP). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B1 Neighbourhood Centre zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met. 5. Pursuant to cl 4.6(5) of WLEP I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR standard. 1. The proposed development is not on land shown on the Acid Sulfate Soils Map for the purposes of cl 6.1 of WLEP. 2. The site is not identified as flood prone land, or as a key site for the purposes of cll 6.3, 6.8 or 6.9 of WLEP. 3. In determining the development application, I have given consideration to the matters listed at cl 6.2 of WLEP and the Geotechnical and other reports filed with the development application. 4. I note that the site is in proximity with the heritage landscape item C65 listed in WLEP. The item incorporates sections of Blair Street and Warners Avenue. Pursuant to cl 5.10(4) of WLEP the consent authority, or the Court exercising the functions of the consent authority, is to consider the effect of the proposal on the heritage significance of an item, before granting consent. I am satisfied that the proposed development will not have a detrimental impact on the proximate item. 5. I am satisfied that the proposed VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for the provision of (or recoupment of the costs of providing) affordable housing. 6. In exercising the functions of the consent authority, the Court has the power to impose the conditions of consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 7.7(3), this power extends to the imposition of the condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. 7. The requirement, pursuant to s 7.5 of the EPA Act and cl 25D of the EP&A Regulation, to notify the proposed VPA can be met following the grant of consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [270]-[272]). 8. The application was notified in accordance with the relevant development control plan and the submissions have been considered.