Clutch Triple Double Pty Ltd v Council Of The Municipality Of Woollahra

[2024] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clutch Triple Double Pty Ltd v Council Of The Municipality Of Woollahra [2024] NSWLEC 1146

Hearing dates:

Conciliation conference on 8 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), to vary the height of buildings development standard in clause 4.3 of the WLEP is upheld.

(2) The Applicant’s written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the WLEP, to vary the floor space ratio development standard in clause 4.4 of the WLEP is upheld.

(3) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA481/2022 (PAN-278930) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application No. DA481/2022 (PAN-278930), for the demolition of the existing dwelling and construction of a six-storey residential flat building at 440 Edgecliff Road, Edgecliff (Lot 1 in Deposited Plan 562095 and Lot 4 in Deposited Plan 228840), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, s 10.2

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

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 8, ss 147, 148, Ch 4

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, Subdiv 2, s 2.99

State Environmental Planning Policy Amendment (Housing) 2023

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Woollahra Local Environmental Plan 2014, cll 4.1A, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9

Cases Cited:

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

Randwick City Council v Micaul Holdings Pty Limited (2016) 225 LGERA 94; [2016] NSWLEC 7

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide. (July 2015)

Woollahra Community Participation Plan

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Clutch Triple Double Pty Ltd (Applicant)
Council Of The Municipality Of Woollahra (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/204653

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Council of the Municipality of Woollahra (the Respondent) of development application DA481/2022 (the DA) seeking consent for the demolition of an existing dwelling and construction of a six-storey residential flat building at 440 Edgecliff Road, Edgecliff (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 March 2024, and at which I presided.

3. However, prior to the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent, in accordance with s 4.17 of the EPA Act.

5. I note here that a signed agreement prepared in accordance with s 34 (10) of the LEC Act was submitted to the Court on 4 March 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. At the outset, the DA was lodged by the Applicant on 7 November 2022 with the written consent of the owner of the site, and was notified in accordance with the Respondent’s Community Participation Plan from 30 November 2022 to 15 December 2022 in response to which 21 public submissions were received.

Woollahra Local Environmental Plan 2014

9. The site is located within an R3 Medium Density Residential zone, identified in the Woollahra Local Environmental Plan 2014 (WLEP), in which residential flat building development is permitted with consent, where consistent with the objectives of the R3 zone, which are:

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

•  To provide a variety of housing types within a medium density residential environment.

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

•  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.

10. The site has a total area of 1,470.9m². As this is greater than 700m², cl 4.1A of the WLEP permits the grant of consent for a residential flat building.

11. However, the proposed development does not comply with the height of building standard of 19.5m at cl 4.3 of the WLEP, and floor space ratio standard of 0.75:1 at cl 4.4 of the WLEP.

12. A written request authored by GSA Planning has been prepared in accordance with cl 4.6 of the WLEP in respect of the height exceedance, and the FSR exceedance.

The height standard is exceeded

13. The written request in respect of height, dated January 2024 (the height request) states in general terms that the built form presents to Edgecliff Road as a three-storey podium, with a further three storeys inset above. The proposed building height ranges between 8.48m to a maximum of 21.07m, as measured from RL68.15 Australian Height Datum (AHD) to the existing ground level directly below. The non-complying elements comprise portions of the roof and screening to rooftop plant, with a maximum exceedance of 1.57m, while the majority of the building is below the height limit. A contributing factor in the exceedance is a steep slope from the rear of the site to the front of around 6.5m.

14. I accept and am satisfied that compliance with the height exceedance is unreasonable or unnecessary in the circumstances of the case because the objectives of the height standard at cl 4.3 of the WLEP are achieved, notwithstanding the non-compliance.

15. Those objectives are:

(a)  to establish building heights that are consistent with the desired future character of the neighbourhood,

(b)  to establish a transition in scale between zones to protect local amenity,

(c)  to minimise the loss of solar access to existing buildings and open space,

(d)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e)  to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

16. The objectives are achieved for reasons set out in the height request that are summarised below:

1. When the existing and emerging character of the immediate area are understood, including development for which consent has been granted, the proposal is consistent with that desired future character.

2. While the site is not located at a zone boundary, the height of the proposal will assist in a transition in scale by a development that is permissible in the zone, and consistent with the desired future character of the immediate area.

3. The proposed building will result in additional shadowing to the neighbouring property at Nos. 442-446 Edgecliff Road between 9am and 12pm, predominantly to paved parking areas. That said, the proposal will increase shadowing to that property’s Ground Floor level at 9am, however this results predominately from a compliant portion of the building envelope, and Nos. 442-446 Edgecliff Road will retain in excess of 3 hours solar access.

4. Further additional shadowing to neighbouring properties relates to part of the north-most landscaped area of No. 18A Albert Street, between 11am and 12pm. However, this space will retain compliant solar access both before and after that time period, and once again results from a complying portion of building envelope. No additional shadowing will be cast to built form itself. Between 1pm and 3pm, the proposed building will result in additional shadowing to the rear private open space of No. 438 Edgecliff Road, and to Nos. 434-436 Edgecliff Road at 3pm. However, this will be consistent with a compliant building envelope.

5. The impact on views, privacy, overshadowing and visual intrusion have been minimised by the exceedance being located forward on the subject site, and away from neighbouring properties to the rear including Nos. 18 and 18A Albert Street that would likely be obscured by a complying building envelope.

6. There are no windows or openings located above the allowable height, with the area of additional height limited to building fins forward on the site and rooftop building services, as a function of the steep topography.

7. The proposed building will remain visually compatible within the Edgecliff Road streetscape, including a 13-storey residential flat building at Nos. 442-446 Edgecliff Road and a nine-storey residential flat building at No. 448 Edgecliff Road, currently under construction.

8. There are no public views of the harbour identified in the vicinity of the site that are affected.

17. I also accept and am satisfied that the environmental planning grounds advanced in the height request are sufficient to justify the contravention of the height standard for reasons summarised below:

1. The fall on the site is such that even a stepped built form, achieved by setting in the Fourth, Fifth and Sixth Floor Levels exceeds the varying height plane applicable to the site by virtue of the height standard.

2. Strict compliance could be achieved by stepping floor plates that would compromise the amenity of, and access within, apartments and compromise good design and amenity.

3. The portion of the exceedance will not be readily visible from Edgecliff Road and therefore will not impact the streetscape amenity or existing characteristics of the area. Furthermore, the proposal also complies with the setback requirements for the site and does not represent an overdevelopment of the site. As such, the development will be consistent with is context.

4. An assessment of privacy, solar access and views concludes that neighbouring properties would be affected to no greater extent than would be the case with a complying building height.

18. The height request also asserts that the proposal is consistent with the objectives of the zone because the proposed development provides 7 x 3-bedroom apartments in development that, for reasons set out earlier, achieve the desired future character of the area and conserve the tree canopy on the site.

19. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R3 Medium Density Residential Zone.

20. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.

21. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

22. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R3 zone.

23. In forming this opinion of satisfaction, I accept that the proposed development is substantially contained within the height plane, and that the exceedance occurs substantially at the leading edge as land falls away, notwithstanding the stepped built form.

24. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the written request.

The Floor Space Ratio Standard is exceeded

25. A written request also authored by GSA Planning in accordance with cl 4.6 of the WLEP seeks to justify the contravention of the Floor Space Ratio (FSR) Standard by the proposal (the FSR request).

26. The FSR request states that the subject site has an area of 1,470.9m², which equates to a maximum GFA of 1,103m². The proposed development will have a GFA of 1,348.10m² and an FSR of 0.92:1. As such, the proposal exceeds the FSR of 0.75:1 permitted on the site by 22.2%.

27. The exceedance of the FSR is as a result of the ground floor level of the proposed development, being elevated on ‘piloti’ which provides for an external open area under the building. In the event the ground floor level was deemed to be excluded from the calculation of FSR, the proposed development would comply with the FSR standard.

28. The FSR request asserts compliance with the FSR standard is unreasonable of unnecessary because the objectives of the FSR standard are achieved, notwithstanding the non-compliance.

29. The relevant objectives at cl 4.4 are:

(a)  for development in Zone R3 Medium Density Residential—

(i)  to ensure the bulk and scale of new development is compatible with the desired future character of the area, and

(ii)  to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and

(iii)  to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space,

…

30. The parties agree, and I am satisfied that compliance with the FSR standard is unreasonable or unnecessary for the reasons that follow:

1. The bulk and scale of the podium reflects the three to four storey residential buildings to the east of the site. Upper levels provide a transitional height to the neighbours further west. Additional setbacks to the top three levels to present a more recessive building form.

2. The open ground floor area provides communal open space that, if excluded from floor space calculations by virtue of its openness would result in a complying development. The bulk and scale presented is consistent with surrounding buildings, including recently approved development of greater FSR, and so is compatible with the area’s desired future character as understood in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112.

3. For reasons identical to those at [16(3)]-[16(6)], the exceedance minimises the adverse environmental effects on the use or enjoyment of adjoining properties and the public domain.

4. Private open space area is allocated to each unit in the form of balconies, deep soil planting complies with the Woollahra Development Control Plan 2015 and the Apartment Design Guide (ADG), and tree canopy cover on the site is conserved and enhanced.

31. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the FSR standard for the reasons set out in the FSR request, summarised as follows:

1. When the height, scale and setbacks of the existing and desired future character are taken into account, including recent approvals in the immediate vicinity, the proposal is consistent with its context, and achieves the landscaping and deep soil requirements.

2. The ground floor arear that contributes to the exceedance does not, of itself, result in adverse environmental impacts where lack of environmental impacts is an environmental planning ground as shown in Randwick City Council v Micaul Holdings Pty Limited (2016) 225 LGERA 94; [2016] NSWLEC 7 at [34].

32. The FSR request also asserts that the proposal is consistent with the objectives of the zone for reasons identical to those at [18], which I accept.

33. I note here that the Respondent is satisfied that the FSR request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development in the R3 Medium Density Residential Zone.

34. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.

35. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the FSR development standard under cl 4.4 is justified.

36. I am satisfied under cl 4.6(4) that the FSR request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R3 zone.

37. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the FSR request.

Remaining Jurisdictional preconditions in the WLEP

38. The site is not identified as an item of heritage significance and is not located in a heritage conservation area. However, it is located in the vicinity of heritage items and adjoins the Woollahra Heritage Conservation Area. As such, cl 5.10(5) applies such that a heritage management document may be prepared to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. A Demolition Report prepared by Urbis, dated 1 November 2022 contains a statement of significance that includes historical research of the site, which concludes the property does not meet the criteria for heritage significance, and is unlikely to detrimentally impact on the setting or curtilage of the heritage items in the vicinity of the site or on the Woollahra Heritage Conservation Area.

38. The site is identified on the relevant map at cl 6.1(2) of the WLEP as Class 5 Acid Sulfate Soil, and is within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and by which the watertable is likely to be lowered below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land requires development consent. On the basis of the surveyed heights of the land the subject of the DA, I accept the proposed works are not likely to lower the watertable below 1 metre AHD on any land within 500 metres of the site and there is unlikely to be any acid sulfate affectation.

39. The development proposes earthworks in the form of excavation for basement carparking. On the basis of the following plans and other documents, I am satisfied that the matters required to be considered at cl 6.2(3) of the WLEP have been adequately addressed:

1. Stormwater drawings prepared by Xavier Knight;

2. Aboriginal Heritage Impact Assessment prepared by Artefact dated 19 October 2022;

3. Geotechnical Report, including recommendations on excavation retention support systems.

41. Clause 6.9 of the WLEP precludes consent unless consideration has been given to whether the proposed development incorporates planning and design measures to enable retention and planting of trees to minimise the urban heat island effect, and will avoid, minimise of mitigate adverse impacts on the tree canopy. An Arboricultural Impact Assessment Report (AIA Report) prepared by Jacksons Nature Works dated 26 October 2022 assesses 26 trees on the subject site and adjoining sites. The AIA Report concludes 4 trees are exempt species that are to be removed to facilitate the proposed development. Two new trees are proposed to be planted to compensate for two non-exempt trees to be removed from the frontage of the site to facilitate the development, and 20 trees are to be retained. On the basis of the retention of the majority of the trees on the site, I conclude the development incorporates the required measures, and on the basis of the proposed replacement, the development has minimised and mitigated the adverse impacts on trees.

State Environmental Planning Policy (Transport and Infrastructure) 2021

42. As the site is located in the vicinity of the Eastern Suburbs railway line, the provisions of Subdiv 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) apply.

43. Section 2.99 provides for excavation in, above, below, or adjacent to rail corridors where that excavation is proposed to be of at least 2 metres below ground on land within, below or above a rail corridor (subs (1)(a), or within 25 metres (measured horizontally) of a rail corridor (subs (1)(b).

44. Development consent is precluded by subs (2) unless written notice of the development application is given to the rail authority, and any response is considered.

45. The DA was referred to Transport for NSW (Sydney Trains) under s 2.99(2) of the Transport and Infrastructure SEPP, and on 22 May 2023, Sydney Trains granted its concurrence to the DA, subject to conditions, which have been incorporated into agreed conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

46. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the land and seeks to preserve trees and other vegetation by requiring a permit to remove vegetation.

47. On the basis of the AIA Report cited [41], the replacement planting and other landscape elements depicted on Landscape Plans prepared by Myles Baldwin Design, and agreed conditions of consent, I note the development for which consent is sought seeks approval to clear particular vegetation in a non-rural area and proposes tree protection during the works.

48. Chapter 10 of the Biodiversity SEPP, as was relevant at the time of lodgement, also applies to the land as it is located within the Sydney Harbour Catchment as set out in s 10.2(1). However, the site is not identified within the Foreshores and Waterways Area; is not a strategic foreshore site; a heritage item; or within the wetlands protection area.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

49. As the proposal is for residential apartment development, the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) would apply but for its repeal by State Environmental Planning Policy (Housing) 2021 (Housing SEPP) on 14 December 2023.

50. At the time of the conciliation conference, the parties agreed that the repeal of SEPP 65 is not saved by the provision at Sch 7A(2) of the Housing SEPP, as the repeal was given effect by State Environmental Planning Policy Amendment (Housing) 2023 (Amending provision), that does not contain a savings provision in the form that it appears in Sch 7A of the Housing SEPP.

51. Nevertheless, the parties agree that where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

52. The statement must verify the designer designed, or directed the design of the development, and explain how the development addresses the design principles, and objectives in Parts 3 and 4 of the ADG.

53. After the conciliation conference, but before judgment was delivered, Sch 7A of the Housing SEPP was amended yet again to insert a provision at Sch 7A, s 8(2A) that sets aside the kinds of applications to which the Amending provisions did not apply, with the effect that Ch 4 of the Housing SEPP applies to a development application made, but not determined, on or before 14 December 2023.

54. Section 147 of the Housing SEPP requires the consent authority, or the Court on appeal, to consider matters that are virtually identical to those at [52], and s 148 of the Housing SEPP sets out non-discretionary standards.

55. I am satisfied that the statement provided by Mr Paul Buljevic (Reg No.7768) is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG.

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

56. The application is accompanied by a BASIX certificate (Cert No. 1339930M_02) prepared by E-LAB Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.

57. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the DA as amended from the provisions of Sustainable Buildings SEPP.

Conclusion

58. 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.

59. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

60. The Court notes that:

1. Council of the Municipality of Woollahra, as the relevant consent authority, has approved, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA 481/2022 (PAN-278930) in accordance with the following amended plans and documents:

1. The following amended architectural plans prepared by PBD Architects:

Drawing No.	Drawing Title	Date
DA002, Issue C	Site Analysis Plan	29 January 2024
DA004, Issue C	Demolition Plan	29 January 2024
DA100, Issue C	Basement 2 Plan	29 January 2024
DA101, Issue E	Basement 1 Plan	29 January 2024
DA102, Issue E	Ground Floor Plan	29 January 2024
DA103, Issue C	Level 1 Plan	29 January 2024
DA104, Issue C	Level 2 Plan	29 January 2024
DA105, Issue C	Level 3 Plan	29 January 2024
DA106, Issue C	Level 4 Plan	29 January 2024
DA107, Issue C	Level 5 Plan	29 January 2024
DA108, Issue D	Roof Plan	29 January 2024
DA200, Issue D	North Elevation	29 January 2024
DA201, Issue D	West Elevation	29 January 2024
DA202, Issue D	East Elevation	29 January 2024
DA203, Issue D	South Elevation	29 January 2024
DA300, Issue E	Section A	29 January 2024
DA301, Issue E	Section B-B	29 January 2024
DA302, Issue E	Section C-C	29 January 2024
DA303, Issue D	Section D	29 January 2024
DA305, Issue C	Driveway Section	29 January 2024
DA400, Issue C	Material Schedule	29 January 2024
DA502, Issue C	FSR Diagram	29 January 2024
DA503, Issue C	FSR Diagram	29 January 2024
DA560, Issue C	Height Plane Diagram	29 January 2024
DA620, Issue D	Shadow Diagram – June 21	29 January 2024
DA621, Issue E	Shadow Diagram – June 21	29 January 2024
DA622, Issue B	Elevational Shadow Diagram – June 21	29 January 2024

2. Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Height of Buildings prepared by GSA Planning dated January 2024.

3. Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Floor Space Ratio (FSR) prepared by GSA Planning dated January 2024.

4. Photomontages prepared by AE Design Partnership Pty Ltd dated January 2024.

5. Statutory Declaration regarding site notice dated 16 November 2023.

6. Addendum to Waste Management Plan prepared by AusWide Consulting dated 4 December 2023.

7. Revised Traffic and Parking Assessment Report prepared by CJP Consulting Engineers dated 6 December 2023.

2. The Applicant filed the amended development application with the Court on 4 March 2024.

Orders

61. The Court orders that:

1. The Applicant’s written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), to vary the height of buildings development standard in clause 4.3 of the WLEP is upheld.

2. The Applicant’s written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the WLEP, to vary the floor space ratio development standard in clause 4.4 of the WLEP is upheld.

3. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA481/2022 (PAN-278930) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

4. The appeal is upheld.

5. Development consent is granted to Development Application No. DA481/2022 (PAN-278930), for the demolition of the existing dwelling and construction of a six-storey residential flat building at 440 Edgecliff Road, Edgecliff (Lot 1 in Deposited Plan 562095 and Lot 4 in Deposited Plan 228840), subject to the conditions of consent in Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A

Decision last updated: 28 March 2024