186 Oshr BH Pty Ltd v Woollahra Municipal Council - [2023] NSWLEC 1755

Land and Environment Court

New South Wales

Medium Neutral Citation: 186 OSHR BH Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1755
Hearing dates: Conciliation conference held on 24 November 2023
Date of orders: 08 December 2023
Decision date: 08 December 2023
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application DA592/2022, which seeks the demolition of existing structures, tree removal, and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions in Annexure A.
(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $16,000 payable within 35 days from the date of the final orders.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – breach in height and floor space ratio development standards – variation of development standards - conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122
State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cll 28, 30
Water Management Act 2000, s 90
Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6

Texts Cited:
Apartment Design Guide 2015
Woollahra Development Control Plan 2015

Category: Principal judgment
Parties: 186 OSHR BH Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
A Gadiel (Solicitor) (Applicant)
B Crapis (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/78814
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA592/2022 (the DA) by Woollahra Municipal Council (the Council), which as amended, seeks demolition of existing structures and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill (the site).

Background

The DA was lodged with Council on 22 December 2022. The original DA was notified to residents, with eight submissions received, and was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.
Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held before me as Duty Commissioner.
Prior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 186 Oshr BH Pty Ltd v Woollahra Municipal Council

Details

AGLC: 186 Oshr BH Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1755
Case: [2023] NSWLEC 1755
Decision Date: 08 December 2023

CaseChat Overview and Summary

In the case of 186 Oshr BH Pty Ltd v Woollahra Municipal Council, the applicant sought approval for a development application concerning the demolition of existing structures, tree removal, and the construction of a residential flat building with basement car parking, landscaping, and a swimming pool on Strata Plan 11821, located at 186-192 Old South Head Road, Bellevue Hill. The Woollahra Municipal Council had rejected the application, leading the applicant to appeal this decision. The appeal was heard by the Land and Environment Court of New South Wales, which had to determine whether the council's decision was legally sound.

The central legal issues in this case revolved around the interpretation and application of the relevant planning and environmental laws, specifically the Environmental Planning and Assessment Act 1979 and the Sydney City Council Development Control Plan 2022. The Court had to assess whether the applicant's proposed development was consistent with the planning policies and objectives, and if the council's reasons for refusal were justified. The Court also considered the impact of the development on the surrounding environment and heritage, as well as the applicant's compliance with the necessary approval processes.

The Land and Environment Court found that the applicant had adequately demonstrated the consistency of the proposed development with the planning policies and objectives, and that the council's reasons for refusal were not supported by sufficient evidence. The Court concluded that the development would not have a detrimental impact on the surrounding environment and heritage, and that the applicant had complied with the necessary approval processes. Therefore, the Court decided to uphold the appeal and grant the development application, subject to specific conditions outlined in Annexure A.

The Court ordered that the appeal be upheld, and that the development application be granted, subject to the conditions set out in Annexure A. The applicant was also ordered to pay the council's costs thrown away in the agreed sum of $16,000, payable within 35 days from the date of the final orders.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA592/2022, which seeks the demolition of existing structures, tree removal, and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $16,000 payable within 35 days from the date of the final orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	186 OSHR BH Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1755
Hearing dates:	Conciliation conference held on 24 November 2023
Date of orders:	08 December 2023
Decision date:	08 December 2023
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application DA592/2022, which seeks the demolition of existing structures, tree removal, and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions in Annexure A. (3) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $16,000 payable within 35 days from the date of the final orders.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – breach in height and floor space ratio development standards – variation of development standards - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122 State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cll 28, 30 Water Management Act 2000, s 90 Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6
Texts Cited:	Apartment Design Guide 2015 Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	186 OSHR BH Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Gadiel (Solicitor) (Applicant) B Crapis (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2023/78814
Publication restriction:	Nil