Bellevue Road Holdings Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1710

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bellevue Road Holdings Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1710

Hearing dates:

Conciliation conference on 1 November 2024

Date of orders:

06 November 2024

Decision date:

06 November 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application 216/2021/3 is approved and development Consent No. DA2021/216/1 is modified in the terms in Annexure A.

(3) Development Consent No. 216/2021/1 as modified by the Court is set out in Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2000, s 113

Category:

Principal judgment

Parties:

Bellevue Road Holdings Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

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

File Number(s):

2024/74977

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), and are concerned with the applicant’s dissatisfaction with the determination by Woollahra Municipal Council (Council) of Modification Application DA216/2021/3 (MA).

2. The Modification Application seeks to modify development consent DA216/2021/1 approved by the Court in March 2022 and a subsequent modification application approved by the Council DA216/2021/2 dated 6 October 2022 (Development Consent). The Development Consent approved the construction of a 25 unit residential flat building over basement parking on land being 142, 142a and 142b Bellevue Road, Bellevue Hill (the Site). The MA is for alterations and additions and associated works.

3. 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, at which I presided. Prior to the conciliation, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application in accordance with agreed conditions.

4. 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.

5. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement of jurisdictional prerequisites provided to the Court on 31 October 2024.

6. Regarding jurisdiction, and noting this advice, I am satisfied in regard to the matters listed below.

7. Having regard to s 4.56(1)(a) of the EPA Act, 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 can readily adopt the reasoning agreed by the parties and indicated in the jurisdictional statement that:

“a.   the Modification Application is largely a development within substantially the same envelope as the Development Consent

b.   the amendments to the unit configurations and the reduction of the number of units will not change the form or substance of the development either qualitatively or quantitively

c.   the development as amended reads from the surrounding locality and street as the same development and has no impact on the streetscape.

d.   the provision of substation to service the needs to the development will not have a significant impact on the streetscape or context nor any trees proposed to be retained.”

8. Having regard to s 4.56(1)(b)-(d) of the EPA Act, I accept the advice of the parties that the application has been notified in accordance with requirements and that no submissions were received.

9. Having regard to s 4.56(1A) of the EPA Act, there is a need for a consent authority to take into consideration 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. While there is no requirement for a jurisdictional finding of satisfaction here, I do note the advice in the parties’ jurisdictional statement where they give consideration to these matters, relevantly (in par 16). In addition, s 4.56(1A) requires a consent authority to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. Again, no jurisdictional finding is required of the court here, but the parties advise they have given consideration to the Court’s original judgement in coming to their agreement.

Conclusion

10. 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.

11. 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

12. The Court notes that

1. Woollahra Municipal Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application DA 216/2021/3 to rely upon the amended architectural and documents as set out the table below.

Reference	Description	Author/Drawn	Date
A-106 Rev 5 A-107 Rev 5 A-108 Rev 5 A-109 Rev 6 A-110 Rev 4 A-111 Rev 5 A-112 Rev 5 A-119 Rev 6 A-120 Rev 6 A-121 Rev 6 A-122 Rev 6 A-123 Rev 6 A-124 Rev 6 A-125 Rev 6 A-CO-7109 Rev 7 A-CO-7110 Rev 9	Lower Ground Floor Plan Ground Floor Plan Level 01 Floor Plan Level 02 Floor Plan Level 03 Floor Plan Level 04 Floor Plan Roof Plan Elevations (SW, SE & NW) Elevations (NE, S, E & Street) Elevation (Detailed Street) Sections A-A & B-B Sections C-C, D-D & G-G Sections E-E & F-F Sections H-H & I-I Substation Layout and Section Substation Elevation and Plan	All by E K Design Studio	29/08/2024 29/08/2024 29/08/2024 03/09/2024 18/08/2024 29/08/2024 29/08/2024 03/09/2024 03/09/2024 03/09/2024 03/09/2024 03/09/2024 03/09/2024 03/09/2024 16/09/2024 09/10/2024
1379106M	BASIX Certificate	NSW Government	07/12/2023
No reference	Arboricultural Impact Assessment Report & Root Mapping	Ross Jackson	19/09/2024

2. The Applicant filed the amended modification application with the Court on 28 October 2024.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Modification Application 216/2021/3 is approved and development Consent No. DA2021/216/1 is modified in the terms in Annexure A.

3. Development Consent No. 216/2021/1 as modified by the Court is set out in Annexure B.

.…………………………

P Walsh

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 06 November 2024