Comino v Woollahra Municipal Council

[2024] NSWLEC 1336

Land and Environment Court

New South Wales

Medium Neutral Citation:

Comino v Woollahra Municipal Council [2024] NSWLEC 1336

Hearing dates:

Conciliation conference on 11 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 330/2023/1 for the construction of a three-storey dwelling house with associated landscaping and site works, at 63 Fitzwilliam Road, Vaucluse, is determined by the grant of consent, subject to the conditions of consent at 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, s 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.28, 6.32

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

Woollahra Local Environmental Plan 2014, cll 6.2, 6.9

Category:

Principal judgment

Parties:

Victor Comino (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/440746

Publication restriction:

Nil

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 deemed refusal of Development Application No 330/2023/1 for construction of a new dwelling house with associated landscaping (the proposal), at 63 Fitzwilliam Road, Vaucluse (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 11 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.

3. 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 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, which was provided to the Court on 7 and 11 June 2024, are as follows:

Plan No.	Description	Rev	Date	Prepared By
Amended Architectural Plans
Sheet 00	Site Plan	Rev J	30 May 2024	David Katon Studio Pty Ltd
Sheet 01	Level 1	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 02	Level 2	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 03	Level 3	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 04	Roof Plan	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 05	Elevation East	Rev J	30 May 2024	David Katon Studio Pty Ltd
Sheet 06	Elevation West	Rev J	30 May 2024	David Katon Studio Pty Ltd
Sheet 07	Elevation N/S	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 08	Short Sections	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 09	Long Sections	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 10	Lawn Terrace Section	Rev J	30 May 2024	David Katon Studio Pty Ltd
Sheet 11	Site Analysis	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 12	Shadow Plans	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 13	Shadow Elevations	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 14	Views from the Sun	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 15	Views from the Sun 2	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 16	Height Limit	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 17	GFA	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 18	Private Open Space	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 19	Landscape Plan	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 20	Driveway Plan	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 21	Excavation	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 22	Excavation Section	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 26	Deep Soil	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 27	Tree Canopy	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 28	Boundary Fences	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 29	Louvre Details	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 30	Sight Lines	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 31	Finishes	Rev I	27 March 2024	David Katon Studio Pty Ltd
Sheet 32	BASIX	Rev I	27 March 2024	David Katon Studio Pty Ltd
Other Documents
-	Schedule of Amendments		30 May 2024	David Katon Studio Pty Ltd
0293.10.23. Stage1.PSI	Stage 1 Preliminary Site Investigation		13 October 2024	Airsafe
•	SEPP Biodiversity Assessment		June 2024	ABC Planning
•	Response Letter (SEPP Biodiversity Assessment)		6 June 2024	C&S Engineering Services
•	Response to Water Quality Comments (SEPP Biodiversity Assessment)		6 June 2024	TTW Engineers
•	(updated) Statement of Environmental Effects		February 2024	Damian O’Toole Town Planning and Heritage Services
•	Amended Survey Plans		5 February 2024	RealServe

Jurisdictional matters

6. Clause 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The application includes a Stage 1 Preliminary Site Investigation prepared by Airsafe and dated 13 October 2023 which concluded that the investigation did not identify any significant onsite present or historical industrial or agricultural contaminating activities, and that the site will be suitable for the proposed development. I am satisfied that the matters set out under cl 4.6 of SEPP Resilience and Hazards are addressed.

7. The site is identified as being in the Sydney Harbour Catchment. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) applies to land within the Sydney Harbour Catchment. The application includes a letter prepared by C&S Engineering Services dated 6 June 2024, which confirms that the quality of water entering any natural waterbody will be as close as possible to neutral or beneficial, as required by s 6.6 of SEPP Biodiversity and Conservation. The application includes confirmation prepared by TTW engineers, which confirms from a geological view that the proposal will not impact on the quality and quantity of ground water for the purpose of s 6.6 of SEPP Biodiversity and Conservation. The application includes a SEPP Biodiversity and Conservation Assessment prepared by ABC Planning and dated June 2024, which considers each of the relevant matters contained in ss 6.6 – 6.11 of SEPP Biodiversity and Conservation and confirms that they are satisfied. I have considered and am satisfied that the matters under ss 6.28 and 6.32 of SEPP Biodiversity and Conservation are addressed.

8. 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.

9. The height of buildings and floor space ratio development standards for the site are met by the proposal.

10. The application is accompanied by a Geotechnical Investigation prepared by JK Geotechnics and dated 4 October 2023. This report confirms that the proposed development is unlikely to disrupt or negatively impact on neighbouring land uses or structures with adequate measures proposed, pursuant to cl 6.2 of LEP 2014.

11. The proposal incorporates planning and design measures to enable the retention and planting of trees and mitigate adverse impacts on the existing tree canopy, pursuant to cl 6.9 of LEP 2014. The site is currently vacant and does not contain any trees. The architectural and landscape plans prepared by Davon Katon Studio Pty Ltd and dated 27 March 2024 provide adequate tree canopy cover and landscaping, consistent with the relevant setting and desired future character.

Conclusion

12. I have considered the submissions made by the parties in the Jurisdictional Statement filed with the Court on 11 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

13. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 330/2023/1 for the construction of a three-storey dwelling house with associated landscaping and site works, at 63 Fitzwilliam Road, Vaucluse, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 June 2024