Concretive BHV Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:

Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1101

Hearing dates:

Conciliation conference held 1 and 15 December 2023 and 2 February 2024

Date of orders:

08 March 2024

Decision date:

08 March 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA136/2023/1 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application DA136/2023/1 (as amended) for substantial demolition of the existing residential apartment building and garage, and construction of a new residential apartment building with basement car park at 206B Victoria Road, Bellevue Hill, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cCh 6

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30

Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2

Texts Cited:

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

NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018

Category:

Principal judgment

Parties:

Concretive BHV Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

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

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

File Number(s):

2023/191107

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Concretive BHV Pty Ltd (the Applicant), against the deemed refusal of Development Application DA136/2023/1 (the DA) by Woollahra Municipal Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of the existing building and the construction of a new four-storey residential apartment building with seven residential apartments and three basement levels accommodating 16 car parking spaces, along with motorcycle and bicycle parking, at 206B Victoria Road, Bellevue (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 and 15 December 2023 and 2 February 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of streetscape and desired future character, inconsistencies between the DA and State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the NSW Department of Planning, Apartment Design Guide (ADG), tree removal, extent of excavation, traffic access and parking, and drainage and stormwater design amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the streetscape, to retain an existing tree at the front of the site, resolve stormwater management satisfactorily, and to resolve parking and access satisfactorily.

6. 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 amended DA.

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

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 24 May to 8 June 2023. Two submissions were received by the Respondent raising concerns for increased traffic congestion and construction phase impacts.

10. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent now satisfactorily resolves the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as a residential apartment building - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the R3 Medium Density Residential zone objectives, which include 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 ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, and to ensure development conserves and enhances tree canopy cover.

13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures on the site is permissible with consent.

14. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

15. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

16. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

17. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

18. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by GSA Planning and dated December 2023.

19. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA proposes a maximum building height of 14.7m, exceeding the development standard of 13.5m by 1.2m, representing a variation of approximately 8.9%.

2. The amended DA is agreed to be of a form and scale that is compatible with the existing streetscape and desired future character of the locality.

3. The areas of exceedance to the maximum building height standard generally arise as a result of the steeply sloping topography and are attributable to external walls and a lift overrun.

4. The DA has been amended during the conciliation conference to resolve the Respondent’s contentions, such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is consistent with the scale of development appropriate to the locality.

5. The proposed height exceedance does not give rise to additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

6. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include 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 ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, and to ensure development conserves and enhances tree canopy cover. I am satisfied the amended DA meets these objectives.

7. The objectives of cl 4.3 of the WLEP include to establish building heights that are consistent with the desired future character of the neighbourhood, to minimise the loss of solar access to existing buildings and open space, and to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion. I am satisfied the amended DA meets these objectives.

20. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

21. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a heritage conservation area. The site is however in close proximity to a number of listed heritage items including Cooper Park and a residential apartment building know as ‘Glamis’.

22. The parties agree, and I am satisfied, that the amended DA creates no unreasonable detrimental impacts upon nearby heritage items.

23. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not situated within a flood planning area.

24. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area. The Applicant has provided a Geotechnical Investigation Report, which indicates that the amended DA is not likely to lower the water table below 1.0m AHD on any land within 500m of Class 1, 2 and 3 land. Accordingly, I am satisfied that those matter set out in cl 6.1 of the WLEP have been appropriately addressed.

25. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Crozier, dated April 2023. Of particular relevance the amended DA includes measures to reduce excavation in the vicinity of the large tree to be retained at the front of the site. Accordingly, I am satisfied these reports address the matters set out at cl 6.2(3). Agreed conditions of consent reflecting the report recommendations are imposed.

26. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

27. The parties agree, and I am satisfied, that the DA is subject to the provisions of SEPP 65.

28. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, MNHDU (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the ADG have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of cl 30(2) of SEPP 65.

29. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument.

30. Pursuant to Ch 6 of SEPP Biodiversity and Conservation, the site is situated within the Sydney Harbour Catchment, a regulated catchment as defined in SEPP Biodiversity and Conservation. However the site is situated outside the mapped Foreshores and Waterways Area and consequently no specific matters for consideration are raised by SEPP Biodiversity and Conservation.

31. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004. Pursuant to s 27 of the EPA Reg, a BASIX certificate No 1385701M_02, dated 11 December 2023, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

32. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

33. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 05 February 2024.

Orders

34. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA136/2023/1 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

3. The Applicant’s written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA136/2023/1 (as amended) for substantial demolition of the existing residential apartment building and garage, and construction of a new residential apartment building with basement car park at 206B Victoria Road, Bellevue Hill, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural plans

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Decision last updated: 08 March 2024