88 Bay Street Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1369

Land and Environment Court

New South Wales

Medium Neutral Citation:	88 Bay Street Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1369
Hearing dates:	Conciliation conference on 16 and 17 July 2019
Date of orders:	07 August 2019
Decision date:	07 August 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended architectural plans and material as referred to in condition A3 of the conditions of consent contained at Annexure “A” and the amended clause 4.6 written request at Annexure “B”. (2) The Applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 prepared by Planning Ingenuity and dated 17 July 2019 (contained at Annexure “B”) for contravention of the maximum height development standard imposed by clause 4.3 of the Woollahra Local Environmental Plan 2014 is upheld. (3)   The appeal is upheld. (4)   Development Application No. DA605/2017/1 for demolition of existing dwelling house, construction of a new dwelling house, swimming pool and landscape works at 4 and 6 Bayview Hill Road, Rose Bay is approved subject to the conditions contained at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 2014
Texts Cited:	Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Woollahra 94A Contribution Plan Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	88 Bay Street Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) Solicitors: Mills Oakley (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/358044
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act)) against the refusal by Woollahra Municipal Council (Council) of Development Application No DA 605/2017/1. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lots 10 and 11 in DP 8816125 at 4-6 Bayview Hill Road, Rose Bay (the site). It seeks consent for demolition of an existing dwelling and construction of a new part 2 part 4 storey dwelling house, swimming pool and landscaping works.

3. The development application was originally lodged with Council on 7 December 2017, notified to adjoining residents and land owners between 20 December 2017 and 18 January 2018 and amended on 4 occasions between 4 July and 22 October 2018 in response to issues raised by Council and objectors. On 1 November 2018, Council issued its Notice of Determination setting out the reasons for refusal of the application. The reasons for refusal related to contravention of planning provisions in the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and Woollahra Local Environmental Plan 2014 (WLEP 2014) primarily relating to the extent of excavation and impacts on the landscape and visual amenity when viewed from the harbour.

4. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 and 17 July 2019. I presided over the conciliation conference. The conciliation conference commenced with a view on site and hearing oral submissions from representatives of the owners of the land immediately adjoining to the south and east.

5. As a result of the conciliation conference, the development application plans were amended, and shortly after the conciliation conference, the parties reached an agreement, based on those amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. The main changes between the plans as refused and the plans the subject of the s34 agreement are:

1. reconfiguration of floor space on the lowest level (Level 1) so as to narrow the building footprint and windows exposed to the water and reduce the extent of excavation on the southern half of the site;

2. raising the floor level of the kitchen area on Level 2 and introduction of new structural columns to support the Level 2 balcony and raised kitchen floor;

3. on Level 3, removal of the home theatre, reconfiguration of the south-eastern bedroom and associated en-suite bathroom, and increasing the building setback from the southern boundary in the south-eastern corner of the site;

4. on Level 4 reduction in the size of the plant room and increasing the building setback from the southern boundary in the south-eastern corner, to align with the amended setback on Level 3 below;

5. reducing the height and radius of the rooftop skylight dome; and

6. amending the landscaping details, including planting in the south-eastern and foreshore setbacks.

7. As a result of the first two changes listed in [6] above a greater area of the existing sandstone rock outcrop on the southern half of the site is retained, and exposed to view from the harbour.

8. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions, pursuant to s 4.16(1) of the EPA Act. 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.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings, as follows:

1. Environmental Planning and Assessment Act 1979;

2. Environmental Planning and Assessment Regulation 2000;

3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP);

4. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55);

5. Woollahra Local Environmental Plan 2014 (WLEP 2014);

6. Woollahra Development Control Plan 2015 (WDCP); and

7. Woollahra 94A Contribution Plan.

10. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [11] and [12] below.

11. The relevant jurisdictional matters are satisfied as follows:

1. In relation to WLEP 2014, I am satisfied that the development works are for the purpose of a dwelling house, which is a permissible use in the R2 Low Density Residential Zone, and the development meets the objectives of the R2 Zone at cl 2.3 of WLEP 2014. Those objectives are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

2. In relation to cll 4.3 and 4.6 of WLEP 2014, I have considered a written request made under cl 4.6 of the WLEP 2011 to vary the height of buildings development standard. The variation in height involves an increase from the maximum of 9.5 metres to a maximum of 14.16 metres. I am satisfied that the clause 4.6 variation request prepared by Planning Ingenuity (updated to relate to the amended plans, and attached to the s34 Agreement as Annexure B) has demonstrated that compliance with the development standard is unreasonable or unnecessary and it has adequately addressed the matters required to be demonstrated. Details of the reasons for reaching this conclusion are set out in [12] below, although in summary the request has adequately demonstrated the proposal:

1. satisfies the objectives of the height of building development standard;

2. satisfies the objectives of the R2 Zone; and

3. there are sufficient environmental planning grounds to justify the contravention of the building height development standard.

3. In relation to the SREP I am satisfied the development the subject of the s34 Agreement reasonably satisfies the aims and relevant provisions of the SREP, including its planning principles, protection of scenic quality of foreshores and protection of views to and from the harbour.

4. In relation to SEPP 55, and in particular cl 7(1) and (2), I have considered whether there may be any contamination and associated remediation required. Based on the long term use of the land for residential purposes, the site is unlikely to have resulted in contamination, and there is no evidence the land requires remediation. Any potential asbestos contamination, within the building or on the site, is managed by way of conditions of the consent.

5. In relation to the Woollahra s94A Contributions Plan 2011, which sets out contributions levied under s 7.12 of the EPA Act, I am satisfied that all contributions and levies are adequately addressed in the conditions of consent.

6. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate, number 875269S_04 dated 17 July 2019 has been provided.

12. The detailed reasons for my conclusion that the clause 4.6 variation request is well founded and is therefore upheld are as follows:

1. The proposal satisfies the objectives of the height of building control:

1. The building height as viewed from Bayview Hill Road complies, and is in fact 6.5 metres below, the 9.5 metres height of buildings development standard. The maximum height of building at this point is RL 19.79 which will match the maximum RL height at the western end of the site, which results in a height variation of 4.66. The parapet and roof of the proposed dwelling-house is compatible with the height of the adjoining waterfront properties.

2. The height breach will enable the proposal to satisfy the relevant desired future character objectives.

3. The height breach will not result in any additional overshadowing to upper level north facing windows or the primary area of private open space of 2 Bayview Hill Road, such that the proposal would not comply with the solar access requirements of the WDCP.

4. The proposed variation will not result in any material loss of views or outlook when compared to a building compliant with the height standard.

5. The proposed variation will not result in any significant additional privacy impacts.

6. When considering the extent of public view sharing against the backdrop of the applicable planning controls, the extent of view loss caused by the non-compliance would be insignificant.

7. Other reasons, as detailed in the clause 4.6 request.

2. The proposal satisfies the objectives of the R2 zone (see [11(1)] above).

3. There are sufficient environmental grounds to justify contravening the building height control:

1. There are no material impacts from the breach.

2. The height breach (4.66 metres) is a direct result of steep topography of the site which falls over 13.5 metres from the east to the west. The site is also subject to a 12 metres Foreshore Building line which necessitates development to be located on the eastern, or steepest, portion of the site. It is only the western edge of the roof and balcony of Levels 3 and 4 that results in a height variation.

3. The eastern side of the building is up to 6.5 metres below the 9.5 metres height of buildings development standard and that part of the building will have the most bearing on character and streetscape contribution of the development. Specifically, when viewed from adjoining properties and the public domain to the east, the building will appear as a height compliant building and the non- compliant elements will not be readily apparent.

4. The parapet and roof of the proposed dwelling-house is entirely compatible with the height of the adjoining waterfront properties to the south.

5. The breach to the height of buildings development standard will permit a significant portion of the existing rock outcrop to be maintained and enhanced in accordance with the SREP.

6. There is an absence of any significant material impacts of the non-compliance on the amenity or environmental values in the locality, the amenity of neighbours or future building occupants and on the character of the area.

7. The height breach facilitates a floor plate arrangement on the site in a manner that is effective in providing high levels of amenity to occupants of the development. The additional height enables a reduced footprint for the proposed development in order to maximise building to building separation between adjoining properties.

8. The proposal provides for an appropriate scale and form that reflects the desired future character for development in the Rose Bay locality.

9. Other reasons, as detailed in the clause 4.6 request.

13. I have also considered the proposal with respect to the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Sydney Harbour DCP) and the WDCP and found it satisfies the relevant aims, objectives and controls (including in the case of the WDCP the desired future character) in those documents, as applied flexibly and reasonably.

14. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The Court orders:

1. The Applicant is granted leave to rely on the amended architectural plans and material as referred to in condition A3 of the conditions of consent contained at Annexure “A” and the amended clause 4.6 written request at Annexure “B”.

2. The Applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 prepared by Planning Ingenuity and dated 17 July 2019 (contained at Annexure “B”) for contravention of the maximum height development standard imposed by clause 4.3 of the Woollahra Local Environmental Plan 2014 is upheld.

3. The appeal is upheld.

4. Development Application No. DA605/2017/1 for demolition of existing dwelling house, construction of a new dwelling house, swimming pool and landscape works at 4 and 6 Bayview Hill Road, Rose Bay is approved subject to the conditions contained at Annexure “A”.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (446 KB)

Annexure B (278 KB)

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Decision last updated: 07 August 2019