142C Bellevue Road Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1521

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

142C Bellevue Road Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1521

Hearing dates:

Conciliation conference on 10 and 21 August, 11 and 29 September and 2 October 2020, final agreement filed 19 October 2020

Date of orders:

30 October 2020 and amended on 9 February 2021

Decision date:

30 October 2020

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in an amount as agreed or assessed.

(3) The Applicant’s written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) seeking to justify the breach of the minimum lot size control pursuant to clause 4.1A of WLEP dated August 2020 has been considered and I have formed the necessary opinion of satisfaction under clause 4.1A of WLEP. Consequently, the Applicant’s written request is well founded and is upheld.

(4) The appeal in respect of the property known as 142C Bellevue Road, Bellevue Hill NSW 2023 is upheld.

(5) Development Application DA/290/2018 to demolish the existing structure and construct a residential flat building including 4 units and other associated site works at 142C Bellevue Road, Bellevue Hill NSW 2023 is approved subject to the conditions at Annexure 'A'.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

Woollahra Local Environmental Plan 2014

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

142C Bellevue Road Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/384830

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA 290/2018 (DA). The DA sought consent for the demolition of an existing dwelling on the site and construction of a three-four storey residential apartment building containing 4 units (the proposal) at 142C Bellevue Road, Bellevue Hill (the site) by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 and 21 August, 11 and 29 September and 2 October 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. The amended proposal is for the demolition of the existing dwelling on the subject site and construction of a residential flat building including 4 units and other associated site works. The proposal has been amended to resolve the contentions raised by the Respondent and other technical matters which arose from the amended plans

6. 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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, the Parties agree, and I am satisfied, the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant environmental planning instrument. The site is zoned R3 medium density residential, and the amended proposal is permissible with consent.

9. The amended proposal is consistent with all relevant development standards contained within the WLEP, except for a non-compliance with the minimum subdivision lot size set out in cl 4.1A(2) of the WLEP. The amended proposed is situated on a lot of 672.65 square metres and represents a variation of approximately 3.9% to the numerical development standard of 700 square metres.

10. Clause 4.6(3) of the WLEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

11. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied the applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

12. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

13. The applicant has provided an amended clause 4.6 written request, prepared by GSA Planning and dated August 2020, seeking to justify non-compliance with the minimum lot size development standard, and demonstrate the objectives set out in cl 4.1 of the WLEP have been met.

14. There is no reasonable opportunity to enlarge the subject site lot size. The extent of minimum lot size non-compliance is relatively minor, and the amended proposal has been designed to be sited within a building envelope determined by the relevant controls for both a residential apartment building and a single dwelling or dual occupancy as described within the Woollahra Development Control Plan 2015. As such, I am satisfied the objectives of the minimum lot size development standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest.

15. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the minimum lot size development standard.

16. Clause 6.2 of the WLEP sets out matters to do with excavation and earthworks which must be considered prior to granting consent. The parties agree, and I am satisfied, those matters listed in clause 6.2(3) have been considered as part of the assessment of the amended proposal.

17. I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered. The parties are agreed the subject land can be used for the proposed purpose.

18. An updated BASIX Certificate, dated 28 August 2020, has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

19. Section 4.15 of the EPA Act identifies public submissions as a relevant consideration in the development assessment process. The parties agree, and I am satisfied, that submissions of objectors have been taken into account as part of the assessment of the amended proposal.

20. As required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

21. The Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in an amount as agreed or assessed.

3. The Applicant’s written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) seeking to justify the breach of the minimum lot size control pursuant to clause 4.1A of WLEP dated August 2020 has been considered and I have formed the necessary opinion of satisfaction under clause 4.1A of WLEP. Consequently, the Applicant’s written request is well founded and is upheld.

4. The appeal in respect of the property known as 142C Bellevue Road, Bellevue Hill NSW 2023 is upheld.

5. Development Application DA/290/2018 to demolish the existing structure and construct a residential flat building including 4 units and other associated site works at 142C Bellevue Road, Bellevue Hill NSW 2023 is approved subject to the conditions at Annexure 'A'.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (703527, pdf)

**********

Amendments

03 November 2020 - Representation details corrected.

03 November 2020 - Cover sheet corrected.

09 February 2021 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, by the request of the Parties and the Court’s own motion, amend Condition A.3 of Annexure A to remove the duplication of the Geotechnical Report; and amend Condition F.8 of Annexure A to include the correct report titled “Demolition Report” by Weir Phillips Heritage dated May 2018.

Decision last updated: 09 February 2021