DP Concept Pty Ltd as Trustee for DP Concept Family Trust v Council of the Municipality of Woollahra

[2023] NSWLEC 1662

Land and Environment Court

New South Wales

Medium Neutral Citation:

DP Concept Pty Ltd As Trustee For DP Concept Family Trust v Council of the Municipality of Woollahra [2023] NSWLEC 1662

Hearing dates:

Conciliation conferences held on 2 August and 4 September 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. 77/2015/2 is modified in the terms in Annexure A.

(3) Development Consent No. 77/2015/2 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, ss 8.9, 34

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002 EPI 530), cl 29

Woollahra Local Environmental Plan 1995

Woollahra Local Environmental Plan 2014, cll 4.3, 4.6

Cases Cited:

Jewel Rose Bay Developments Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1421

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

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

Woollahra Community Participation Plan, 2019

Category:

Principal judgment

Parties:

DP Concept Pty Ltd As Trustee For DP Concept Family Trust (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
P Rigg (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2023/72041

Publication restriction:

Nil

JudgEment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the demolition of the existing dwelling and erection of a residential flat building comprising six apartments and basement car parking at 635 New South Head Road, Rose Bay. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [15] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. On 20 September 2016, the Land and Environment Court granted consent to Development Application 77/2015/1 within proceedings Jewel Rose Bay Developments Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1421, for the demolition of the existing dwelling and erection of a residential flat building comprising five apartments and basement car parking (Original DA).

3. On 14 May 2020, the Respondent granted consent to DA 77/2015/2 pursuant to s 4.55 of the EPA Act which amended the Original DA by reconfiguring the basement carpark including addition of car stackers, increase in parking spaces from 6 to 7, internal reconfiguration of the units, addition of Juliet balconies to rear elevation and increase in number of units from five to six (Approved Modification).

4. 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 2 August and 4 September 2023. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The Applicant agreed to amend the application for the modification in response to matters raised by Council, and these amended plans form part of the s 34 agreement. A final agreement under s 34(3) of the LEC Act was filed on 15 September 2023. The agreement is supported by an agreed statement on jurisdictional prerequisites, which sets out the jurisdictional matters about which the consent authority must be satisfied. The decision agreed upon is for the grant of the Modification Application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The amended plans differ from the previous plans by, inter alia, providing for modifications to the approved residential flat building, including six units with basement parking for eight vehicles and communal use of the landscaped front and rear setbacks, and a reconfigured roof layout with an open terrace.

6. I have considered the contents of the jurisdictional note, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in Condition 1 (of Annexure A), concerning the development application DA 77/2015/3. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

7. I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modifications to the built form are minor, there is no change to the proposed use or generally to the external appearance of the approved building, and the development will be of the same or lesser height, bulk and scale and have the same number and size of residential units.

8. The Modification Application was notified in accordance with the Council’s Community Participation Plan. In addition to submissions made, a number of oral submissions were provided by residents at the on-site view. I am satisfied that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments of the imposition of conditions.

9. The amended Modification Application is accompanied by a BASIX certificate in compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

10. Under State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002) (Design SEPP), pursuant to cl 29(2), in determining an application for a modification of a development consent, the consent authority is to take into consideration, inter alia, the design quality of the development (as modified) when evaluated in accordance with the design quality principles (in the Design SEPP) and the Apartment Design Guide (2015). The Applicant submitted an updated Design Verification Statement with the amended Modification Application, which the Respondent has stated satisfies the applicable design quality principles.

11. The original DA was lodged and considered under the Woollahra Local Environmental Plan 1995, and at the time of the original consent in 2016, the Woollahra Local Environmental Plan 2014 (WLEP) was also considered in the approval being granted. Pursuant to cl 4.3 of the WLEP, a maximum building height of 10.5m applies to the site. The original DA granted consent for a compliant maximum height to the top of the lift overrun of RL 13.5. The first Approved Modification granted consent for a maximum height to the top of the lift overrun of RL 14.32. The current amended Modification Application has reduced the height to the top of the glass balustrade to 11.15m (RL 14.04). Consistent with the decision of the Court in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 (at [31]), the power in s 4.55(2) of the EPA Act is sufficiently broad to allow the grant of a modification application that breaches a development standard, and cl 4.6 of the WLEP does not apply to modification applications.

12. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

13. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the Modification Application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

14. The Court notes that:

1. Council of the Municipality of Woollahra, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA 77/2015/3 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover Sheet	DA-000	Q	28/08/2023	Dickson Rothschild
Summary Sheet	DA-101	M	28/08/2023	Dickson Rothschild
Site Analysis	DA-102	C	03/06/2016	Dickson Rothschild
Survey	DA-103	D	31/07/2023	Dickson Rothschild
Demolition Plan	DA-104	C	03/06/2016	Dickson Rothschild
Site Plan	DA-105	J	19/07/2023	Dickson Rothschild
Basement Floor Plan	DA-201	O	19/07/2023	Dickson Rothschild
Ground Floor Plan	DA-202	R	21/08/2023	Dickson Rothschild
Level 1 Floor Plan	DA-203	O	21/08/2023	Dickson Rothschild
Level 2 Floor Plan	DA-203B	M	21/08/2023	Dickson Rothschild
Roof Plan	DA-204	P	28/08/2023	Dickson Rothschild
Sections AA-BB	DA-300.1	R	28/08/2023	Dickson Rothschild
Sections FF	DA-300.2	F	28/08/2023	Dickson Rothschild
Southern Boundary Detail	DA-300.3	B	31/07/2023	Dickson Rothschild
Section Comparison Sheet-1	DA-300a	B	19/07/2023	Dickson Rothschild
Section Comparison Sheet-2	DA-300b	C	31/07/2023	Dickson Rothschild
Section Comparison Sheet-3	DA-300c	C	31/07/2023	Dickson Rothschild
Details	DA-301	H	20/06/2023	Dickson Rothschild
Vehicle Turning Template	DA-302	C	06/05/2022	Dickson Rothschild
Elevations	DA-400	P	28/08/2023	Dickson Rothschild
3D Views	DA-501	B	28/08/2023	Dickson Rothschild
Shadow Analysis 1	DA-601	J	28/08/2023	Dickson Rothschild
Shadow Analysis 2	DA-602	J	28/08/2023	Dickson Rothschild
Shadow Analysis 3	DA-603	J	28/08/2023	Dickson Rothschild
Shadow Analysis 4	DA-604	J	28/08/2023	Dickson Rothschild
Shadow Analysis 5	DA-605	J	28/08/2023	Dickson Rothschild
Shadow Analysis 6	DA-611	I	28/08/2023	Dickson Rothschild
Shadow Analysis 7	DA-612	J	28/08/2023	Dickson Rothschild
Shadow Analysis 8	DA-613	J	28/08/2023	Dickson Rothschild
Shadow Analysis 9	DA-614	J	28/08/2023	Dickson Rothschild
Shadow Analysis 10	DA-615	J	28/08/2023	Dickson Rothschild
View Access	DA-650	E	19/07/2023	Dickson Rothschild
View Access 1	DA-651	E	19/07/2023	Dickson Rothschild
View Access 2	DA-652	E	19/07/2023	Dickson Rothschild
View Access 3	DA-653	G	28/08/2023	Dickson Rothschild
Materials and Finishes	DA-701	F	19/07/2023	Dickson Rothschild
Gross Floor Area LEP 2014	DA-801	I	19/07/2023	Dickson Rothschild
Solar Access & CV Diagrams	DA-851	H	19/07/2023	Dickson Rothschild
Amended Stormwater Plans
Cover Sheet Plan	000	B	08/08/2023	Telford Civil
Stormwater Layout Plan Basement Level sheet 1 of 2	101	B	08/08/2023	Telford Civil
Stormwater Layout Plan Basement Level sheet 2 of 2	102	B	08/08/2023	Telford Civil
Stormwater Layout Plan	103	B	08/08/2023	Telford Civil
Sediment & Erosion Control Plan & Details	104	B	08/08/2023	Telford Civil
Miscellaneous Details Sheet	105	B	08/08/2023	Telford Civil
Amended Landscape Plans
Landscape Site Plan (Sheet 1 of 3)	D	07/08/2023	Paul Scrivener Landscape
Details/planting Plan (Sheet 2 of 3)	D	07/08/2023	Paul Scrivener Landscape
Section AA and BB (Sheet 3 of 3)	D	07/08/2023	Paul Scrivener Landscape
Reports
Updated BASIX Certificate 1295701M_02 prepared by LC Consulting Engineers dated 15 August 2023
Updated NATHERS Certificate prepared by LC Consulting Engineers dated 15 August 2023
Updated SEPP 65 Design Verification Statement prepared by Dickson Rothschild dated 5 September 2023

2. The amended Modification Application was filed with the Court on 15 September 2023.

3. The Court notes the Applicant has agreed to pay the Respondent's costs thrown away as a result of the amendments made as agreed or assessed.

15. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. 77/2015/2 is modified in the terms in Annexure A.

3. Development Consent No. 77/2015/2 as modified by the Court is Annexure B.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A (243186, pdf)

Annexure B (553126, pdf)

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Decision last updated: 07 November 2023