34 Cranbrook Road Pty Ltd v Woollahra Municipal Council
[2024] NSWLEC 1720
•07 November 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: 34 Cranbrook Road Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1720 Hearing dates: Conciliation conference on1 November 2024 Date of orders: 07 November 2024 Decision date: 07 November 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA249/2023/1 (DA) for the demolition of an existing residential flat building, and the construction of a new residential flat building with basement car parking and landscaping and other works, at 34 Cranbrook Road, Bellevue Hill NSW 2023 is determined by the grant of consent subject to conditions contained in Annexure ‘B’.
(3) The Applicant is to file the Amended Application plans and documents listed in Annexure A within two (2) days.
(4) The Applicant is to pay the Respondent's costs thrown away as a result of the Amended Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Water Management Act 2000, s 90
Environmental Planning and Assessment Regulation 2000, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy (Housing) 2021 Ch 2, Ch 4, s 47
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Woollahra Local Environmental Plan 2014, cll 2.7, 5.21
Texts Cited: Apartment Design Guide
Woollahra Development Control Plan 2015
Category: Principal judgment Parties: 34 Cranbrook Road Pty Ltd (First Applicant)
MHN Design Union Pty Ltd (Second Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Solicitors:
A Boskovitz (Solicitor) (Applicants)
J Ede (Solicitor) (Respondent)
Boskovitz Lawyers (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2024/68769 Publication restriction: No
Judgment
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COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, as an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Woollahra Municipal Council (Council) of Development Application No. DA237/2023/1 (DA). As it happens, since the filing of the appeal an actual determination of the refusal of the grant of consent has been made under Council auspices.
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The DA is seeking approval for the demolition of an existing residential flat building and the construction of a new residential flat building with basement parking and landscaping and other works at 34 Cranbrook Road, Bellevue Hill NSW 2023 (site).
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The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 November 2024, and at which I presided. Prior to the conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
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This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.
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Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
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The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are certain jurisdictional requirements warranting attention before this function can be exercised. The parties outlined an agreed statement of jurisdictional prerequisites of relevance in these proceedings, and agreed responses, in an email communication dated 31 October 2024 (jurisdictional statement). Regarding jurisdiction, and noting the advice in the jurisdictional note from the parties, I am satisfied in regard to the matters listed below.
Woollahra Local Environmental Plan 2014
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The Land is zoned R2 Low Density Residential under Woollahra Local Environmental Plan 2014 (WLEP), and the proposal meets the definition of ‘residential flat building’, which is not a permissible use in this zone. The parties agree, and I accept, that existing use rights apply. Demolition is permissible under cl 2.7 WLEP.
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The parties advise that the proposal does not breach any applicable development standard.
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Clause 5.21, concerned with flood planning, includes matters for consideration (subcl 5.21(3)) and requirements in regard to points of satisfaction (subcl 5.21(2)). The parties advise that the application was supported by a Flood Management Report prepared by Xavier Knight dated 8 August 2023, which directly addressed each of the points of consideration and satisfaction as indicated in cl 5.21. In the jurisdictional statement the parties advise of their agreement that due consideration has been given to the matters at subcl 5.21(3) and that they were satisfied in regard to the matters at subcl 5.21(2) will. I accept this technical advice and the satisfaction requirements at subcl 5.21(2) have been met.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)
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In relation to s 4.6 of the SEPP Resilience and Hazards, Council has considered whether the site is contaminated. I accept Council’s advice that the historical use of the site for residential purposes and the fact that the site has not been used for any use listed in Table 1 of the Contaminated Land Planning Guidelines indicates that contamination is unlikely. Section 4.6 is satisfied.
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (‘Biodiversity and Conservation SEPP’)
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The parties advise as follows with respect to Chapter 6 (jurisdictional statement pars 22-24):
The Site is within the Sydney Harbour catchment but is outside the Foreshores and Waterways Area as determined by clause 6.1 of the Biodiversity and Conservation SEPP.
Division 2 to Chapter 6 of the Biodiversity SEPP applies to the DA and requires that the consent authority consider various matters in deciding whether to grant development consent to development on land in a regulated catchment.
An amended stormwater plan together with music modelling has been provided to the Council which satisfy the Council as to the appropriateness of stormwater management on the Site and will result in a beneficial outcome with respect to stormwater management.
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I accept the agreed advice of the parties and am satisfied in regard to relevant matters in Chapter 6.
State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and related matters
Chapter 4-Design quality related matters
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In their jurisdictional statement, the parties advise that the DA was lodged on 12 July 2023 when the provisions of State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development 2002 ("SEPP 65") would apply. On 14 December 2023, SEPP 65 was repealed. New provisions relating to the design of residential apartment development have been enacted in the Housing SEPP which apply to the proposal. The parties advise that, with respect to the amended application the subject of the agreement, there was preparation of a design verification statement in accordance with the Environmental Planning and Assessment Regulation 2021 requirements. I accept the advice of the parties that the proper procedural requirements and evaluative considerations of the Housing SEPP and related matters have been undertaken in coming to their agreed decision.
Chapter 2-affordable housing
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Chapter 2 Part 3 is concerned with the retention of existing affordable rental housing. Section 47 introduces certain matters which must be “taken into account” in regard to the demolition of non-strata subdivided residential flat buildings. The provisions of s 47 do not include a requirement for a positive jurisdictional finding of the Court. However the parties advise that due consideration has been given to the topic including by way of the preparation of an Affordable Housing Report which accompanied the development application. This report finds that the development will not reduce the availability of affordable housing in the area. On the basis of this report, Council determined that it is not satisfied the development will or is likely to reduce the availability of affordable housing in the area.
Other matters
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The parties advise that the proposal requires an approval from Water NSW under s 90(2) of the Water Management Act 2000 and that the DA is nominated Integrated Development. The parties advise that on 27 September 2023, Water NSW issued General Terms of Approval which have been addressed in agreed Conditions of Consent.
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Mindful of other relevant provisions of s 4.15(1) of the EPA Act, I note the advice of the parties that the DA was notified in accordance with the requirements of the Woollahra community participation plan and three submissions were received. I accept the advice of the parties that objections have been given consideration which is the extent, if any, of the jurisdictional test.
Conclusion
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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.
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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
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The Court notes that that the Respondent, Woollahra Municipal Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA249/2023/1 in accordance with the documents listed in Annexure ‘A’ (‘Amended Application’).
Orders
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The Court orders:
The appeal is upheld.
Development Application DA249/2023/1 (DA) for the demolition of an existing residential flat building, and the construction of a new residential flat building with basement car parking and landscaping and other works, at 34 Cranbrook Road, Bellevue Hill NSW 2023 is determined by the grant of consent subject to conditions contained in Annexure ‘B’.
The Applicant is to file the Amended Application plans and documents listed in Annexure A within two (2) days.
The Applicant is to pay the Respondent's costs thrown away as a result of the Amended Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
P Walsh
Commissioner of the Court
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Annexure A
Annexure B
Decision last updated: 07 November 2024
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