Conrina Living Rosebay Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1689

Land and Environment Court

New South Wales

Medium Neutral Citation:

Conrina Living Rosebay Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1689

Hearing dates:

Conciliation conference on 30 November 2020, 7 and 14 December 2020

Date of orders:

05 January 2021

Decision date:

05 January 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend the application to rely upon the amended architectural plans and other documents referred to in the table in condition A.3 of Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application, as agreed or assessed.

(3) The Applicant's written request under clause 4.6 of the Woollahra Local Environmental Plan 2013 (“WLEP”) seeking a variation of the height of buildings development standard under clause 4.3 of the WLEP is upheld.

(4) The Appeal is upheld.

(5) Development Application No. DA469/2019/1 for demolition of existing residential buildings and construction of 9 residential apartments at 598-600 Old South Head Road, Rose Bay is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – clause 4.6 request for height of building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy No 55—Remediation of Land

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

Woollahra Local Environmental Plan 2014

Cases Cited:

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

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Conrina Living Rosebay Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/67805

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act), being an appeal against the deemed refusal of a development application No. DA-469/2019/1 seeking development consent for the demolition of existing brick residential buildings and construction of new residential flat building of 9 apartments (the Proposed Development) at 598 and 600 Old South Head Road, Rose Bay legal identified as Strata Plan 13386 and Lot 1 in Deposited Plan 936682 (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 30 November 2020, 7 and 14 December 2020. I presided over the conciliation conference.

3. 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. This decision involved the Court granting leave to rely on amended plans, upholding the appeal, upholding a request pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to vary the height development standard, and granting development consent to the development application subject to conditions.

4. The applicant has now provided amended architectural plans, landscape plan and other supporting documentation in response to the Council’s Statement of Facts and Contentions filed and the matters discussed prior to and during the conciliation conference.

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as follows:

1. Breach of the height development standard as provided by cl 4.3 of WLEP;

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP (Building Sustainability Index: BASIX) 2004);

3. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55);

4. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65);

5. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP (Vegetation in Non-Rural Areas) 2017).

7. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed document titled “Parties’ Statement on Jurisdiction” and I extract the relevant parts as follows:

1. SEPP 55 applies to the Land. The Site has been used for residential purposes for a significant period of time with no prior land use. The applicant’s search of Council’s records indicate that the Site has only been used for residential uses and that the surrounding lands have only been zoned for residential uses (see the Statement of Environmental Effects dated November 2019). Accordingly, the Site is not considered to be subject to contamination and further investigation is not required at this stage.

2. SEPP (Building Sustainability Index: BASIX) 2004 applies to the proposal and an updated certificate has been provided.

3. SEPP 65 applies to the proposal being a new residential flat building development. Both the SEPP 65 and the Apartment Design Guide have been taken into consideration. The applicant has also provided an updated Design Verification Statement to reflect the amended architectural plans.

4. SEPP (Vegetation in Non-Rural Areas) 2017 applies to the land. In this instance the proposal will not see any loss of the biodiversity values of trees and other vegetation, and provides an updated landscape plan for the enhancement of trees and vegetation, and so the application is therefore considered to be consistent with the aims of this SEPP.

5. Development on the Site is otherwise controlled by the WLEP. The proposal does ask for a minor variation to the height development standard under the WLEP and a written variation request under cl 4.6 has been submitted.

6. The parties are satisfied that the written request prepared by Boston Blyth Fleming dated 30 November 2020 demonstrates the matters required by cl 4.6(3) of WLEP and that the proposal is in the public interest because it is consistent with the objectives of the height of buildings development standard and the objectives for development within the R3 Medium Density Residential zone in accordance with cl 4.6(4) of the WLEP. Having regard to the written request, the Court could also be satisfied with the matters required by cl 4.6(5).

7. The development remains permissible in the zone.

8. Notification and pubic submissions. The original development application was notified in accordance with Council Notification Policy. The amended plans were re-notified in accordance with Council’s Notification Policy. The Council has considered the submissions received in response to the original proposal and the amended proposal.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. I now give my reasons regarding the cl 4.6 written request to vary the height development standard. The parties agree that cl 4.3 of WLEP is a development standard for the purposes of the EPA Act and cl 4.6 of WLEP. The Height of Buildings map in the WLEP fixes a maximum height of 10.5 metres above ground level existing for the Site. The Proposed Development is described in the cl 4.6 written request in relation to the height development standard contravention at page 2 as follows:

It has been determined that minor roof edge and pergola elements breach the 10.5 m height standard by a maximum of 240mm (2.28%) with the centrally located lift overrun breaching the standard by a maximum of 1.685 metres (16%).

10. The permissive power in cl 4.6(2) of WLEP to grant development consent for a development that contravenes the development standard is subject to conditions. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard.

11. His Honour Preston CJ explains in the decision of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]-[15] that there are two preconditions as follows:

“The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii). …

The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.”

12. I am satisfied that the applicant’s written request prepared by Boston Blyth Fleming Town Planners dated 30 November 2020 (the Written Request) seeking to justify the contravention of the development standard in cl 4.3 of the WLEP 2014 has adequately addressed the matters required to be demonstrated by cl 4.6(3) of WLEP as follows:

1. Unreasonable or unnecessary in the circumstances because I accept the opinions and reasons provided in the Written Request and in particular, the Proposed Development is consistent with the objectives of the R3 Medium Density Residential Housing zone objectives and the circumstances are that “the building is compliant with the building height standard where it adjoins its Old South Head Road frontage with the building height breaching elements located beyond the front facade where they are not readily discernible in a streetscape context.” (page 5 Written Request) and is therefore consistent with the desired future character of the neighbourhood as described for the Rose Bay Precinct. In addition, I accept that in relation to the building height objectives, the shadow diagrams demonstrate that the shadowing impact generated by a fully compliant building envelope would be significantly greater than that afforded by the Proposed Development and am satisfied that the design minimises the loss of solar access to existing buildings and open space.

2. There are sufficient environmental planning grounds being to promote good design and amenity of the building environment and to promote the orderly and economic use and development of land where the relatively minor building height non-compliance results from the topography of the Site making strict compliance with the height standard more difficult to achieve. I accept that the design of the Proposed Development is in response to the topography providing for a split-level floor place such that the building steps down the Site. I accept that the where the Proposed Development is compliant with the FSR standard, strict compliance with the height standard would result in an outcome significantly compromising the design quality, accessibility and amenity of the development.

13. The second opinion of satisfaction, as described by Preston CJ in Initial Action at [26] is as follows:

“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 particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant’s written request has adequately addressed the matter in cl 4.6(4)(a)(ii).”

14. I am satisfied that the Proposed Development would 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.

15. Having addressed the two opinions of satisfaction as required by the first precondition in cl 4.6(4)(a) I now address the second precondition in cl 4.6(4) that must be satisfied before the consent authority can exercise the power to grant development consent for development that contravenes a development standard, namely that the concurrence of the Secretary (of the Department of Planning and Infrastructure) has been obtained (cl 4.6(4)(b) of WLEP). Preston CJ states in Initial Action at [29] that:

“On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."

16. I have considered the matters in cl 4.6(5) and find no matter of concern.

17. I adopt the reasons given by the parties regarding the other jurisdictional prerequisites.

18. 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.

19. The Court orders:

1. The Applicant is granted leave to amend the application to rely upon the amended architectural plans and other documents referred to in the table in condition A.3 of Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application, as agreed or assessed.

3. The Applicant's written request under clause 4.6 of the Woollahra Local Environmental Plan 2013 (“WLEP”) seeking a variation of the height of buildings development standard under clause 4.3 of the WLEP is upheld.

4. The Appeal is upheld.

5. Development Application No. DA469/2019/1 for demolition of existing residential buildings and construction of 9 residential apartments at 598-600 Old South Head Road, Rose Bay is approved subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (756389, pdf)

Architectural Plans (9136150, pdf)

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Decision last updated: 05 January 2021