Ding v Woollahra Municipal Council

[2019] NSWLEC 1403

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ding v Woollahra Municipal Council [2019] NSWLEC 1403
Hearing dates:	Conciliation conference on 15 August 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely on the following further amended plans: (a)   Architectural plans (Issue E) prepared by Dods and Zuccon Architects dated 12 August 2019; (b)   Landscape plan (Revision 3) prepared by Marcia Hosking Landscape Architect dated 12 August 2019; and (c)   Structural engineering sketches SK01 and SK02 (Revision G) prepared by Elegant Engineering dated 09 August 2019. (2)   The appeal is upheld. (3)   Development Consent is granted to DA 394/2017 for the proposed street entry portico, front (street) wall and new swimming pool at 11 Wentworth Street, Point Piper, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – structural integrity - agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Alex Ding (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) S Puckeridge (Solicitor) (Respondent)   Solicitors: Hones Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/390202
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 394/2017 by Woollahra Municipal Council (hereafter the Council) to construct a pool, screen and fence with gate, install a rainwater tank and provide landscaping at Lot 11 DP 1198795, also known as 11 Wentworth Street, Point Piper (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 15 August 2019. I presided over the conciliation conference. There were three residents heard at the onsite viewing in this conciliation. The issue raised by objectors regarding structural integrity of new structures is resolved to the parties’ satisfaction.

4. At the conciliation conference, the applicant sort to rely on amended plans following expert conference. Based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 394/2017 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 394/2017 with conditions and subject to the amended plans.

6. The parties identified the merit and jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Woollahra Local Environmental Plan 2014 (WLEP); and Woollahra Development Control Plan 2015 (WDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal and that there are no jurisdictional unresolved issues.

7. The parties agree that the relevant provisions of the WLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within an R2 Low Density Residential zone. The proposed works are permissible in the zone and consistent with the zone objectives. In addition, the proposed earthworks are consistent with the requirements of cl 6.2 of the WLEP.

8. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the WDCP are resolved to the satisfaction of the parties, in particular any potential structural issues. The measures adopted by the proposed development are consistent with the available expert structural/geotechnical reports. The parties have confirmed that there are no amenity impacts to adjoining properties as a consequence of the development proposed.

9. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA 394/2017, should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

10. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

11. The Court orders:

1. Leave is granted to the Applicant to rely on the following further amended plans:

1. Architectural plans (Issue E) prepared by Dods and Zuccon Architects dated 12 August 2019;

2. Landscape plan (Revision 3) prepared by Marcia Hosking Landscape Architect dated 12 August 2019; and

3. Structural engineering sketches SK01 and SK02 (Revision G) prepared by Elegant Engineering dated 09 August 2019.

2. The appeal is upheld.

3. Development Consent is granted to DA394/2017 for the proposed street entry portico, front (street) wall and new swimming pool at 11 Wentworth Street, Point Piper, subject to the conditions of consent at Annexure A.

………………………………

S Bish

Commissioner of the Court

Annexure A (653 KB)

Structural Sketch plan and section (948 KB)

Amended landscape plan (996 KB)

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Decision last updated: 02 September 2019