DQ and XY 78 Pty Ltd ACN 608 704 230 v Woollahra Municipal Council

[2019] NSWLEC 1053

Land and Environment Court

New South Wales

Medium Neutral Citation:	DQ & XY 78 Pty Ltd ACN 608 704 230 v Woollahra Municipal Council [2019] NSWLEC 1053
Hearing dates:	23 – 24 January 2019
Date of orders:	05 February 2019
Decision date:	05 February 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See [20] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; infill development in a heritage conservation area; exceedance of the height of buildings development standard; impact on the heritage significance of the heritage conservation area; orders.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Bettar v Council of the City of Sydney [2014] NSWLEC 107090 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	DQ & XY 78 Pty Ltd CAN 608 704 230 (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Comino Prassas Solicitors (Applicant) J Hewitt, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/208422
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 283/2017 for the construction of a new three storey residential dwelling including a car stacker for two vehicles and a swimming pool (the proposal), at 11 Stephen Street, Paddington (the site), by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 January 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties. The agreement included amendments to the proposal, including changes to the street elevation and privacy screening to the rear elevation to avoid overlooking by the residents of the proposal of the property to the rear of the site.

3. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 4.6(2) and 5.10(4) of the Woollahra Local Environmental Plan 2014 (WLEP 2014).

The site and its context

4. The site is on the north-western side of Stephen Street. The site has an area of 230m2, with a street frontage of 12m and a site depth ranging between 18.16m to 20.145m. The existing site contains a swimming pool and is otherwise vacant. The existing ground level of the site is approximately a…