Boyd v Woollahra Municipal Council

[2024] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boyd v Woollahra Municipal Council [2024] NSWLEC 1398

Hearing dates:

Conciliation conference on 27 June 2024

Date of orders:

11 July 2024

Decision date:

11 July 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 87/2022 for substantial alterations and additions to the existing dwelling, including substantial demolition, construction of a new dwelling and ancillary works, at 127 Victoria Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions contained in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34AA, 34, 39

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.28, Sch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Woollahra Local Environmental Plan, cll 4.6, 5.10, 5.21, 6.1, 6.2

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

John David Boyd (First Applicant)
Marly Boyd (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/192863

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 87/2022 for substantial alterations and additions to the existing dwelling, including substantial demolition, construction of a new dwelling and ancillary works (the proposal), at 127 Victoria Road, Bellevue Hill (Lot 1 in Deposited Plan 25473) (the site), by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 June 2024. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application were filed with the Court on 28 June 2024 and are listed under condition A.3 of the conditions of consent at Annexure A.

Jurisdictional matters

6. The site is zoned R2 Low Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the R2 zone, to which regard must be had, 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.

• To ensure development conserves and enhances tree canopy cover.

7. In relation to cl 5.10 ‘Heritage Conservation’ of LEP 2014, the site is not a heritage item, nor is it within a heritage conservation area.

8. In relation to cl 5.21 ‘Flood Planning’ of the LEP 2014, the site is not located within an area identified in the Flood Planning Area on the Flood Planning Map in the LEP 2014.

9. In relation to cl 6.1 ‘Acid Sulfate Soils’ of the LEP 2014, the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulphate soils and cause environmental damage. Clause 6.1 of LEP 2014 requires development consent for the carrying out of works on Class 5 land within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land. I am satisfied that the proposal is consistent with the provisions of cl 6.1 because I accept the agreement of the parties, as follows:

• the site is located within a Class 5 area, as specified in the Acid Sulfate Soils Map to LEP 2014; and

• the subject works are not works within 500m of adjacent Class 1, 2, 3 or 4 land below 5m AHD and by which the water table is likely to be lowered below 1m AHD; and

• a preliminary assessment is therefore not required; and

• there is unlikely to be any acid sulfate affectation.

10. Clause 6.2 of the LEP 2014 requires the consent authority to consider various matters at cl 6.2(3)(a)-(h) in deciding whether to grant development consent for earthworks. The application was accompanied by a Geotechnical Investigation Report prepared by JK Geotechnics dated 7 February 2022 and a Construction Management Plan prepared by Vigere Projects. In response to an issue raised by the Council, the Applicant’s geotechnical engineer produced a further report in November 2023. As a result of discussions between the parties, further investigations were undertaken in respect of the boundary conditions with the adjoining properties fronting Drumalbyn Road. The matters arising under cl 6.2(3) have been addressed by the geotechnical engineer. The documents outline that the proposed building form can be constructed safely so as to ensure the management of groundwater and that other surrounding properties will not be adversely impacted by the amended proposal. In addition, condition C.12, D2-D5 and E7-E10 of the conditions of consent at Annexure A provide for various conditions to be complied with before the issue of a construction certificate and before and during the course of works on the site. On the basis of the Geotechnical documents, and the agreed conditions of consent at Annexure A, I accept the parties’ agreement that the matters raised in cl 6.2(3) of LEP 2014 have been considered.

11. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated. I accept the agreement of the parties that the site has been used for residential purposes for many decades and is unlikely to be contaminated.

12. The site is located within the Sydney Harbour Catchment in accordance with the maps associated with the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), but it is located outside the Foreshores and Waterways Area identified in the relevant map (s 6.28). Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a “regulated catchment” as defined in Schedule 6 – Dictionary to Chapter 6 of the BC SEPP. Part 6.2 of the BC SEPP precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management.

13. I am satisfied on the basis of the agreement of the parties, that the stormwater plans for the proposal ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and, in all likelihood, beneficial, noting the existing lack of filtration and other current mechanisms on the site; and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10); and the proposal is not located on land within 100m of a natural waterbody in a regulated catchment (s 6.11).

Contravention of the height of buildings development standard

14. The proposal has a maximum height of 10.53m. The height of buildings development standard for the site is 9.5m.

15. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by GSA Planning and dated March 2024.

16. Clause 4.6(4) of LEP 2014 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

17. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2014 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

18. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

19. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

20. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

21. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

22. The applicant’s written request justifies the contravention of the height of buildings development standard as follows:

• compliance with the height standard would be unreasonable and unnecessary because the building height and bulk of the proposal is of an appropriate form and scale and is compatible with the surrounding development and the desired future character for the locality;

• the proposal substantially reduces the existing height of the built form currently on the site;

• the proposal has been designed to minimise any impact on views, minimises overshadowing or loss of privacy and involves minimal visual intrusion to adjoining and nearby properties; and

• the height of the proposal will not have an adverse impact on public views from the public domain.

23. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

24. The environmental planning ground relied on by the applicant is that the exceedance is due to previous excavation on the site made to accommodate the existing basement. The proposal has been designed to respond to the existing excavation and topography of the site.

25. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to the topography and existing excavation of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

26. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

27. For the reasons set out in the written request, I am satisfied that the proposal is in the public interest because it is consistent with the zone objectives and development standard objectives.

Conclusion

28. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 27 June 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

29. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 87/2022 for substantial alterations and additions to the existing dwelling, including substantial demolition, construction of a new dwelling and ancillary works, at 127 Victoria Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions contained in Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 11 July 2024