Topper v Waverley Council

Land and Environment Court (NSW)|2024-04-04

Judgment

COMMISSIONER: These proceedings are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a modification application, referenced as DA-365/2014/B (henceforth the MA) by Waverley Council (Council). The MA seeks to further modify the development consent for DA-365/2014 (original DA) which relates to land known as 21 Thompson Street, Tamarama and legally described as Lot 43 in Deposited Plan 10771 (site). There was a previous modification to the original DA which goes under the reference number DA-365/2014/A.
The MA would modify certain particulars including providing for alterations of approved internal layouts, alteration of windows, change in roof form, pool layout, parking arrangement and balconies. The parties indicate there would be an overall reduction in building envelope.

Conciliation and agreement reached between the parties

The Court arranged a conciliation conference between the parties under ss 34AA(2) and 34(1) of the Land and Environment Court Act 1979 (LEC Act). I was appointed to preside. The conference was held on 4 April 2024 and proceedings commenced with a site inspection, at which I had the opportunity to hear from a number of objectors.

Pre-requisites to undertaking the function requested by the parties

There are certain pre-requisites which require attention before this function of granting consent to the modification application can be exercised. The parties outlined matters of statutory relevance here in an agreed jurisdictional statement provided to the Court on 4 April 2024. Noting the advice in the parties' jurisdictional statement, I am satisfied in regard to the matters listed below, noting it is subss 4.55(2) and (3) which provide the frame for the evaluation of modification applications of this kind.
Having regard to subs 4.55(2) of the EPA Act: 1. Mindful of subs 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. Here I note the advice of the parties that the modified proposal would remain a single dwelling on the site and retain the number of storeys and essentials of wall height, roof form, parking as well as gross floor area. The modified proposal would be reasonably seen as substantially the same development in both qualitative and quantitative terms. 2. I am advised that consultation and notification, as relevant, has occurred as per the requirements of subs 4.55(2)(b) and (c) of the EPA Act. As indicated above, I also had the opportunity to hear from objectors in the course of the site inspection. It is clear to me that there has been consideration of the objections received. The requirements of s 4.55(2)(d) of the EPA Act have been met.
Having regard to subs 4.55(3) of the EPA Act, I accept the advice of the parties that due consideration has been given to the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application and the reasons given by the consent authority for the grant of the consent that is sought to be modified. Assisting me here was the material outlined in the parties' jurisdictional statement, which included reference to relevant provisions of State Environmental Planning Policy (Sustainable Buildings) 2022, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021 and Waverley Local Environment Plan 2012 (WLEP). The parties' explained how the relevant provisions have been considered, with respect to these instruments, which I accept. Mindful of North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 at 481 D and subsequent decisions, in regard to this modification application, there is no requirement for positive jurisdictional findings with respect to such planning instruments, as might otherwise be required when evaluating development applications.

Note with respect to restrictive covenant

I am aware that one of the objecting submissions made reference to a restrictive covenant referenced in DP 638148 (Respondent's Bundle of Documents filed 25 March 2024 Tab 3b) benefitting the objector and burdening (and registered on the certificate of title) of the site. The objector sought that the proposal reasonably respond to the requirements of the covenant. The covenant is concerned with detailing specified restrictions in relation to height of structures on the site.
The parties' jurisdictional statement of 4 April 2024 (Annexure A) referred me to cl 1.9A of WLEP, which provides as follows: 1.9A Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. (2) This clause does not apply - (a) to a covenant imposed by the Council or that the Council requires to be imposed, or (b) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or (c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or (d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or (e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or (f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or (g) to any planning agreement within the meaning of Subdivision 2 of Division 7.1 of the Act. (3) This clause does not affect the rights or interests of any public authority under any registered instrument. (4) Under section 3.16 of the Act, the Governor, before the making of this clause, approved of subclauses (1)-(3).
Reference was also made in the parties' jurisdictional statement to judicial authorities: Carey-Evans and Quist as Executors of the Estate of Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 at [60], and JEA Holdings (Aust) Pty Ltd v Registrar-General of New South Wales [2024] NSWSC 85 (at [74]-[76] and [79]-[81]). The essence of the parties' advice, which I accept, is that the provisions of cl 1.9A(1) make good that a restrictive covenant would not apply to the extent necessary to affect the otherwise grant of consent in this instance in accordance with the agreement of the parties. I do note that the planning experts for the parties gave some consideration to the intended effects of the covenant in forming their agreed position with respect to the height of certain features of the proposal, especially in regard to landscaping.

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Notation

The Court notes that: 1. Waverley Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending modification application DA 365/2014/B to rely upon the amended architectural and documents as set out below:

Landscape Plans S34-00, 01, 02, 03, 04, 05, 06 and 07 prepared by Wyer & Co dated 04/04/2024 received by Council on 04/04/2024. Plan Number and Revision Plan description Plan Date Date received by Council DA- 1101 B SITE PLAN 13/12/23 27/03/2024 DA- 2200 C LEVEL 0 - GROUND 07/03/24 27/03/2024 DA- 2210 B LEVEL 1 - POOL 13/12/23 27/03/2024 DA- 2220 B LEVEL 2 - MEZZANINE 13/12/23 27/03/2024 DA- 2230 B LEVEL 3 - FAMILY BEDROOMS 13/12/23 27/03/2024 DA- 2240 B LEVEL 4 - MASTER SUITE 13/12/23 27/03/2024 DA- 2250 B LEVEL 5 - ENTRY 13/12/23 27/03/2024 DA- 2251 B LEVEL 5 - LIVING 13/12/23 27/03/2024 DA- 2260 B ROOF PLAN 13/12/23 27/03/2024 DA- 3201 SECTION A 07/03/24 27/03/2024 DA- 3202 C SECTION B 07/03/24 27/03/2024 DA- 3203 C SECTION C 07/03/24 27/03/2024 DA- 3211 B EAST ELEVATION 13/12/23 27/03/2024 DA- 3212 B WEST ELEVATION 13/12/23 27/03/2024 DA- 3213 B NORTH & SOUTH ELEVATIONS 13/12/23 27/03/2024

Stormwater Concept Design, prepared by AT&L, Job No. 23-1088, DWG No. DAC001, DAC010, DAC011, DAC012, DAC013, DAC014, DAC015, DAC016, DAC017, DAC020, DAC025, DAC026, DAC030, Rev A dated 21/06/2023;
- BASIX Certificate; and
- The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part B1 Waverley DCP 2012. 1. The Applicant filed the amended modification application with the Court on 4 April 2024.

Orders

The Court orders that: 1. The appeal is upheld; 2. Modification Application 365/2014/B is approved and development Consent No. 365/2014 is further modified in the terms in Annexure A; 3. Development Consent No. 365/2014 as modified by the Court is set out in Annexure B.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2024

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

(a) to a covenant imposed by the Council or that the Council requires to be imposed, or

(b) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or

(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g) to any planning agreement within the meaning of Subdivision 2 of Division 7.1 of the Act.

(3) This clause does not affect the rights or interests of any public authority under any registered instrument.

(4) Under section 3.16 of the Act, the Governor, before the making of this clause, approved of subclauses (1)-(3).

Reference was also made in the parties' jurisdictional statement to judicial authorities: Carey-Evans and Quist as Executors of the Estate of Carey-Evans v Wu (2022) 256 LGERA 1; [2022] NSWLEC 144 at [60], and JEA Holdings (Aust) Pty Ltd v Registrar-General of New South Wales [2024] NSWSC 85 (at [74]-[76] and [79]-[81]). The essence of the parties' advice, which I accept, is that the provisions of cl 1.9A(1) make good that a restrictive covenant would not apply to the extent necessary to affect the otherwise grant of consent in this instance in accordance with the agreement of the parties. I do note that the planning experts for the parties gave some consideration to the intended effects of the covenant in forming their agreed position with respect to the height of certain features of the proposal, especially in regard to landscaping.

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

(1) Waverley Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending modification application DA 365/2014/B to rely upon the amended architectural and documents as set out below:

Landscape Plans S34-00, 01, 02, 03, 04, 05, 06 and 07 prepared by Wyer & Co dated 04/04/2024 received by Council on 04/04/2024.

Stormwater Concept Design, prepared by AT&L, Job No. 23-1088, DWG No. DAC001, DAC010, DAC011, DAC012, DAC013, DAC014, DAC015, DAC016, DAC017, DAC020, DAC025, DAC026, DAC030, Rev A dated 21/06/2023;
BASIX Certificate; and
The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part B1 Waverley DCP 2012.

(2) The Applicant filed the amended modification application with the Court on 4 April 2024.

(1) The appeal is upheld;

(2) Modification Application 365/2014/B is approved and development Consent No. 365/2014 is further modified in the terms in Annexure A;

(3) Development Consent No. 365/2014 as modified by the Court is set out in Annexure B.

Planning and Assessment Act 1979

Environment Court Act 1979

Land Management Act 2016

Parks and Wildlife Act 1974

Conservation Trust Act 2001

Species Conservation Act 1995

Planning and Assessment Regulation 2021

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