CSKS Developments Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1801

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CSKS Developments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1801

Hearing dates:

Conciliation conference held 13 September, 23 October and 01,15 November 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA10/2024 and rely upon the amended plans and documents referred to in Condition A.3 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 floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA10/2024 (as amended) for the demolition of all existing structures and construction of a new four-storey residential apartment building containing eight units at 85-87 Birriga Road, Bellevue Hill, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – floor space ratio – 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, 37, 38

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

State Environmental Planning Policy (Housing) 2021 Ch 4, s 147, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

NSW Department of Planning, Apartment Design Guide, July 2015

Woollahra Aboriginal Heritage Study (Coast History and Heritage 2021)

Category:

Principal judgment

Parties:

CSKS Developments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

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

File Number(s):

2024/132287

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 CSKS Developments Pty Ltd (the Applicant), against the deemed refusal of Development Application DA10/2024 (the DA) by Woollahra Municipal Council (the Respondent).

2. At the date of its lodgement on 9 January 2024, the DA sought consent for the demolition of all existing structures and the construction of a four-storey residential apartment building containing eight units, basement parking for sixteen vehicles, a roof terrace with pergola above, associated landscaping and site amalgamation at 85 to 87 Birriga Road, Bellevue Hill (the site).

3. 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 13 September, 23 October and 01, 15 November 2024. I presided over the conciliation conference.

4. 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.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of floor space ratio (FSR) exceedance, excessive building bulk and scale, excessive building height, incompatibility with existing and desired future streetscape character, inadequate building setbacks to the primary street, tree loss and inadequate replacement landscape, unreasonable view loss for neighbouring properties, unacceptable impacts arising from the proposed roof terraces, poor visual privacy and cross viewing, excessive excavation, and vehicle access, and parking amongst other contentions.

6. Agreed design amendments have now been made to improve the proposed building’s relationship to the site, its context and the desired future character of this part of Bellevue Hill. Changes have been made to significantly reduce the overall height of the proposed building, achieved by lowering the ground level and eliminating the roof terraces and associated pergola structure. Other issues such as privacy, cross viewing, extent of landscaping, and vehicle access have been resolved. These agreed amendments also have the effect of reducing the amount of gross floor area proposed and mitigate against impacts of building scale and view affectation for a number of nearby neighbours.

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 amended DA.

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

9. 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.

10. The DA was publicly notified from 31 January to 15 February 2024. A total of fourteen submissions were received by the Respondent raising concerns including:

1. View loss.

2. Exceedance of the FSR development standard.

3. Building height, bulk and scale.

4. Streetscape and desired future character.

5. Visual privacy.

6. Excessive excavation.

7. Parking and traffic generation impacts.

8. Overshadowing and loss of daylight.

9. Non-compliance with the NSW Apartment Design Guide (ADG) and the relevant provisions of State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

10. Construction phase impacts of noise and disruption and potential damage to existing structures.

11. Tree loss.

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

12. 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. The amended DA - characterised as residential apartment development - is permissible with consent within the R3 zone.

13. 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.

14. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

15. 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 4.4 - FSR.

16. In such an instance, cl 4.6 of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with the FSR 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.

17. Clause 4.6 of the WLEP then requires the consent authority (the Court in this instance) to be satisfied that the Applicant’s written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for FSR) and the objectives for development within the zone (R3 Medium Density Residential) in which the development is proposed to be carried out.

18. Additionally, cl 4.6 of the WLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.

19. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

20. The Applicant has provided a written request seeking to vary the FSR development standard, prepared by ABC Planning Pty Ltd and dated October 2024.

21. Pursuant to cl 4.4 of the WLEP the site is subject to a FSR development standard of 0.9:1.

22. The amended DA proposes a FSR of 1.11:1, exceeding the FSR development standard by 196.9sqm and representing a variance of approximately 24%.

23. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape of the immediate locality.

2. More specifically, notwithstanding its proposed FSR exceedance, the amended DA proposes a maximum height of building of 11.185m in an instance where the relevant development standard for height of building is 13.5m.

3. The proposal presents as a four-storey residential apartment building with recessive upper-level consistent matching the general form and scale of a number of nearby apartment buildings of a similar scale.

4. The amended DA is agreed to be consistent with the desired landscape character of the local area, with side and rear setbacks able to meet requirements for deep soil provision and the establishment of meaningful landscape areas.

5. The amended DA’s reduced building height mitigates against earlier view impacts and is agreed to represent an appropriate response to view sharing.

6. The reduced building height improves solar access for neighbouring properties compared with a notional development that otherwise meets the height of building and FSR development standards.

7. 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 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; and to ensure development conserves and enhances tree canopy cover. I am satisfied the amended DA is consistent with these objectives.

8. The objectives of cl 4.4 of the WLEP include to ensure the bulk and scale of new development is compatible with the desired future character of the area; to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain; and to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space. I am satisfied the amended DA meets these objectives.

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

25. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area. Notwithstanding this, the site is identified by the Woollahra Aboriginal Heritage Study (Coast History and Heritage 2021) as being within an area of Potential Aboriginal Heritage Sensitivity. The Applicant has provided an Aboriginal Heritage Due Diligence Assessment, submitted with the DA. I am satisfied that the effect of the amended DA on Aboriginal Heritage has been considered and any unexpected findings are regulated by agreed conditions of consent.

26. Further, the site is in reasonably close proximity to two identified heritage items listed within the WLEP. These items are:

• “Cumberland” – residential flat building & interiors, dwarf brick walls and grounds’ (I13) at 81 Birriga Road, Bellevue Hill.

• “Westmoreland” – residential flat building & interiors, dwarf brick walls, paving and grounds’ (I14) at 81A Birriga Road, Belllevue Hill.

27. The parties agree, and I am satisfied, the amended DA will not obstruct the significant views to these heritage items from Birriga Road, nor disrupt the relationship between the heritage items.

28. Additionally, a State Heritage Listed Item, the ‘Bondi Ocean Outfall Sewer’ (Item 01623) runs through a portion of the site where excavation is proposed. The Applicant has provided a Heritage Demolition Report, submitted with the DA, which assesses potential impacts on the item. As the item is at least 30m below the ground surface it will not be impacted by the proposed excavation and development. I am satisfied the amended DA appropriately addresses historical archaeology as required by cl 5.10 of the WLEP.

29. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is mapped within a Class 5 acid sulfate soils area. However, the amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site and therefore an acid sulfate soils management plan is not required to be prepared.

30. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical and Hydrogeological Report assessing the impact of the amended DA on environmental functions and processes, neighbouring uses, cultural and heritage items of features of the surrounding lands. I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.

31. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the WLEP - Tree canopy cover in Zones R2 and R3 - the amended DA includes landscape plans and design measures to conserve existing street trees and enhance tree canopy cover through proposed tree plantings. Agreed conditions of consent are imposed to achieve tree protection during the construction phase.

32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated and that the amended DA does not propose a change from the current residential use.

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

34. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment but is outside the Foreshores and Waterways Area. The amended DA is agreed to appropriate manage stormwater quality and quantity.

35. Similarly, the amended DA is agreed to not result in an adverse impact on terrestrial, aquatic or migratory animals or vegetation, does not result in the clearing of riparian vegetation, does not result in erosion or sedimentation of a waterbody, impact on wetlands or impact on aquatic ecology.

36. Finally, the amended DA is agreed to not result in an adverse environmental impact on downstream areas in adjacent local government areas.

37. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1729450M_02, dated 10 October 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

38. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

39. Pursuant to the provisions of the EPA Reg, the Applicant's architect, Arkham’s Pty Ltd (and its nominated architect Mr Evan Nguyen - NSW registered architect 11281) has prepared a Design Verification Statement dated 2 December 2024, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design Principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

40. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

41. 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.

Notes

42. The Court notes that:

1. Pursuant to ss 37 and 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 15 November 2024.

Orders

43. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA10/2024 and rely upon the amended plans and documents referred to in Condition A.3 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 floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA10/2024 (as amended) for the demolition of all existing structures and construction of a new four-storey residential apartment building containing eight units at 85-87 Birriga 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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Amendments

18 December 2024 - Architectural plans are reuploaded.

Decision last updated: 18 December 2024