Clermont Residences Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1832

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clermont Residences Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1832

Hearing dates:

Conciliation conference 6 December 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to Modification Application DA 177/2020/6 and accordingly, Development Consent No. DA 177/2020 is modified in the terms in Annexure A.

(3) Development Consent No. DA 177/2020 for demolition and construction of a residential flat building at 132 Bellevue Road, Bellevue Hill, as modified by the Court, is Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential flat building – conciliation conference – agreement reached – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 4.56, 8.9

Land and Environment Court Act 1979 s 34

Environmental Planning and Assessment Regulation 2021s 100, 102, 113

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

State Environmental Planning (Housing) 2021

Woollahra Local Environment Plan 2014 cll 4.4, 4.6, 6.1

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, (1998) 97 LGERA 433

Texts Cited:

Apartment Design Guide

Woollahra Community Participation Plan

Category:

Principal judgment

Parties:

Clermont Residences Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Paterson (Solicitor) (Respondent)

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

File Number(s):

2024/264479

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify development consent, DA/177/2020/1. That consent approved the demolition of a three storey dwelling and the construction of a new four storey residential flat building. The works are proposed at 130 Bellevue Road, Bellevue Hill (Lot 3 in DP 7523). The modification application, DA/177/2020/6 (The MA) seeks consent for the following modifications:

Ground Floor Level (Unit 1)

• Additional excavation to the north-east to accommodate an extension to Unit 1, a void area and piling.

• Additional excavation to the north-west and south-east to accommodate a void area and piling.

• Level lowered by 200mm.

• Minor internal reconfiguration to accommodate the extension to Unit 1.

• New window adjacent entry lobby.

• Reconfiguration of the pool deck to match the footprint of the rainwater tank.

• Minor reconfiguration of the external staircase.

Level 01 (Unit 2)

• Additional excavation to the north-east to accommodate an extension to Unit 2, a void area and piling.

• Additional excavation to the north-west and south-east to accommodate a void area and piling.

• Level lowered by 200mm.

• Minor internal reconfiguration to accommodate the extension to Unit 2.

• New window adjacent entry lobby.

• Minor reconfiguration of the external staircase.

Level 02 (Unit 3)

• Additional excavation to the north-west to accommodate a store room, void area and piling.

• Fire pump room and services room deleted.

• Area of excavation to the north-east reduced to accommodate a void area and piling.

• Minor internal reconfiguration to accommodate the extension to Unit 3.

• Double volume area above the living room deleted.

• New window adjacent entry lobby.

• Minor reconfiguration of the external staircase.

Level 03 (Parking Level)

• Reconfiguration of the car parking layout to accommodate a comms room, bin area, fire pump room and A/C condensers.

Level 04 (Unit 4)

• Extension of bedroom 3 to the north-east.

• Minor internal reconfiguration to accommodate the extension to Unit 4.

• Two new window openings to replace the single highlight window to the southern elevation.

Roof Level

• Deletion of one of the skylights and minor reconfiguration of one of the skylights.

2. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

3. At the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 6 December 2024. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters:

Substantially the same: s 4.56(1)(a) of the EPA Act

5. The development application was approved by way of Court consent and thus s 4.56 of the EPA Act applies. The jurisdictional requirements for the modification application are contained in s 4.56(1) of the EPA Act. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

1. Quantitatively the modification application results in a development which remains as a part 4, part 5 storey development of 4 units. A majority of the units become larger but remain 3 and 4 bedroom units. The height of the development remains the same.

2. The modification application does not propose any change to the use, overall appearance, scale or form of the proposed development. There be no perceived changes to the development when viewed from the public domain.

6. I am satisfied that on the basis argued by the applicant, and agreed by the Respondent, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.56(1)(b) of the EPA Act

7. The second jurisdictional requirement under s 4.56(1)(b) of the EPA Act relates to consultation. The modification application was notified between 3 April 2024 and 18 April 2024 in accordance with the Woollahra Community Participation Plan. One submission was received which is considered at [8] below.

8. The requirement of s 4.56(1)(b) of the EPA Act is met.

Notification of previous submitters: s 4.56(1)(c) of the EPA Act

9. The third jurisdictional requirement under s 4.56(1)(c) of the EPA Act is that the Respondent notify, or make reasonable attempts to notify, each person who made a submission in respect of the relevant development application. In conformance with this requirement the Respondent has notified the modification application to those persons who objected to the development application.

Notification of previous submitters: s 4.56(1)(d) of the EPA Act

10. The fourth jurisdictional requirement under s 4.56(1)(d) of the EPA Act is that the consent authority has considered any submissions made concerning the proposed modification.

11. The concerns raised in the written submission following the notification of the modification application include:

• Non-compliance with the floor space ratio development standard.

• The Notification Drawings do not reflect the proposed plan changes. In particular, the increased floor area is not published.

• Visual privacy impacts.

• Overshadowing/ solar access.

12. I accept the agreement of the parties that these concerns have been considered through amendments to the modification application or the imposition of conditions of consent.

13. The requirements of s 4.56(1)(d) of the EPA Act are met.

Relevant matters in s 4.15(1) of the EPA Act: s 4.56(1A) of the EPA Act

Woollahra Local Environmental Plan 2014 (LEP 2014)

14. Woollahra Local Environment Plan 2014 (LEP 2014) is the relevant local environmental planning instrument that applies to the Site. The Site is zoned R3 Medium Density Residential pursuant to the LEP 2014. Residential flat buildings are permissible with consent.

15. The modification application does not propose to change the overall height of the proposed development.

16. LEP allows for a floor space ratio (FSR) of 0.65:1 on the site: cl 4.4 of LEP 2014. The modification application proposes an FSR of 1.01:1. Although the FSR of the development as proposed to be modified will exceed the maximum FSR permitted pursuant to cl 4.4(2) of the LEP 2014, the Applicant is not required to apply for a variation request pursuant to cl 4.6 of LEP 2014 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, (1998) 97 LGERA 433). Further, the parties agree, and I accept, the proposed modification is consistent with floor space ratio objectives pursuant to cl 4.4 of the LEP 2014.

17. The modification application proposes additional earthworks. A geotechnical report was submitted with the DA prepared by JK Geotechnics and dated 6 March 2024 (the ‘Geotech Report’). The Geotech Report was prepared on the basis of the original plans submitted with the MA and resolved that the development as modified could be safely undertaken with respect to site conditions. In determining the modification application, I have given consideration tot eh matters a cl 6.1 ‘Acid Sulphate Soils’ and 6.3 ‘Earthworks’.

18. The parties agree, and I accept, that there are no provisions of LEP 2014 that preclude the approval of the modification application.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

19. The use of the Site is proposed to remain residential. Accordingly, cl 4.6(2) of the SEPP RH is not engaged and consideration of a report specifying the findings of a preliminary investigation of the Site is not required.

20. Further, the site has been used for residential purposes for a substantial number of years and is unlikely to be contaminated.

21. An assessment of site suitability in relation to potential contamination was undertaken as part of the Original Consent and the site conditions remain the same.

State Environmental Planning (Housing) 2021 and the Apartment Design Guide

22. A Design Verification Statement dated 26 November 2024 has been prepared by Bureau SRH Architecture in respect of the Modification Application as required by s 102 of Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

23. In respect of s 100(3) Environmental Planning and Assessment Regulation 2021 an amended BASIX certificate was prepared in respect of the amended modification application.

24. The parties agree, and I accept, that the modification application as amended can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act.

25. The requirements of s 4.56(1A) of the EPA Act are met.

26. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

27. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

Notes

28. The Court notes that:

1. Pursuant to cl 113 of the Environmental Planning and Assessment Regulation 2021, Woollahra Municipal Council, as the relevant consent authority, approves the Applicant’s amendment of Modification Application No. DA 177/2020/6 in accordance with the following amended plans and documents:

Reference	Description	Author/Drawn	Date(s)
S34-100 Rev 02 S34-101 Rev 02 S34-102 Rev 02 S34-103 Rev 02 S34-104 Rev 02 S34-105 Rev 02 S34-200 Rev 02 S34-300 Rev 02	Ground Floor Level Plan Level 1 Plan Level 2 Plan Level 3 Plan Level 4 Plan Roof Plan West and North Elevations Sections	All by SRH Architecture	All dated 28/11/2024
25315 Rev. I	Concept Design - Landscaping	Mayard Landscape Design	11/11/2024
23037CAD002A-001~006	Swept Path Analysis	MLA Transport Planning	17/08/2023
33152BCrptRev3	Geotechnical Report	JK Geotechnics	06/03/2024
C03.01-Rev B	Infiltration Testing Report	JK Geotechnics	13/03/2024
23-3665 D01-C D02-C D03-C D04-C D05-C D06-C D07-C D08-C D09-C	Stormwater Management Plan	Zait Engineering Solutions P/L	06/03/2024 06/03/2024 06/03/2024 06/03/2024 06/03/2024 06/03/2024 06/03/2024 06/03/2024 06/03/2024
1104118M_07	BASIX Certificate	NSW Government	06/05/2024

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Modification Application DA 177/2020/6 and accordingly, Development Consent No. DA 177/2020/1 is modified in the terms in Annexure A.

3. Development Consent No. DA 177/2020 for demolition and construction of a residential flat building at 132 Bellevue Road, Bellevue Hill, as modified by the Court, is Annexure B.

D M Dickson

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 20 December 2024