Dutton v Council of the Municipality of Woollahra

[2024] NSWLEC 1099

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dutton v Council of the Municipality of Woollahra [2024] NSWLEC 1099

Hearing dates:

Conciliation conference on 19-20 February 2024: final submissions 20 March 2024

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA 440/2022/1 for alterations and additions to convert an existing mixed-use building to a single dwelling with basement garaging, landscaping and a new swimming pool at 382 Edgecliff Road, Woollahra, subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: dwelling house development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 34AA, 39

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Cchs 2, Ch 10

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, Subdiv 2, s 2.99

Woollahra Local Environmental Plan 2014, cll 1.8A, 4.3, 4.4, 5.10, 6.1, 6.2, 6.9

Texts Cited:

Woollahra Community Participation Plan 2019

Category:

Principal judgment

Parties:

Amy Dutton (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
S Hill (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/234763

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Alterations and additions are proposed to an existing building that once served as a residence and surgery for a doctor. The building stands on a site at the intersection of Edgecliff Road and Trelawney Street, Woollahra, identified as No 382 Edgecliff Road.

2. The existing building is not identified as an item of heritage significance but is considered a contributory item within the area.

3. Development application DA 440/2022/1 (the DA) seeks consent for partial demolition of the existing dwelling to permit alterations and additions that comprise a new basement garage, storage, sauna and shower room; substantial construction on the ground floor, first floor and a new attic level, swimming pool and associated landscaping.

4. The DA was lodged by the Applicant, Ms Dutton, with the Council of the Municipality of Woollahra, the Respondent in these proceedings, on 19 October 2022.

5. The Respondent notified the DA between 9 November 2022 and 24 November 2022 in accordance with the Woollahra Community Participation Plan 2019, in response to which 21 public submissions were received.

6. The DA was refused on 28 April 2023, and the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 in Class 1 of the Court’s jurisdiction on 24 July 2023.

7. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives and experts, heard oral submissions from residents of neighbouring property at No 2A Trelawney Street.

8. Following the onsite view, the Court facilitated conciliation discussions in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act).

9. During the conciliation conference, at which I presided, the Applicant agreed to certain amendments that, in the view of the Respondent, addressed the matters in contention.

10. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

11. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 February 2024.

12. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

13. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [36].

14. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

15. The site is currently registered under strata title comprising Lot 1 and Lot 2 in SP11566. The DA was lodged with the written consent of the owner of the site, the Owners Corporation for SP11566.

16. The site is within the R3 Medium Density Residential zone, according to the Woollahra Local Environmental Plan 2014 (WLEP) in which development for the purpose of dwelling house development is permitted within consent, where consistent with the objectives of development in the R3 zone as follows:

•  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.

•  To ensure development conserves and enhances tree canopy cover.

17. The height standard applicable to the site at cl 4.3 of the WLEP indicates a height of 19.5m on the relevant map. However, cl 4.3(2A) of the WLEP provides that that development for the purpose of a dwelling house in the R3 zone is 9.5m, with which the proposed development complies.

18. A maximum floor space ratio (FSR) standard does not apply to the site as the DA was lodged prior to adoption of Amendment No 33 to the WLEP, which took effect on 14 July 2023 and the application of the applicable provision, at cl 4.4(2A) is saved by the relevant savings provision at cl 1.8A of the WLEP. The provision at cl 4.4(2A) that then applied, stated that no FSR applied to the site.

19. As the site is located within the Woollahra heritage conservation area (Woollahra HCA), and is in close proximity to items of heritage significance, the heritage conservation provisions at cl 5.10 of the WLEP apply. The site is located around 51m from the Bondi Ocean Outfall Sewer, when measured vertically from its location below ground, which is listed for its state heritage significance, and is also in close proximity to four properties listed for their local heritage significance.

20. I note the agreement of the heritage experts that certain amendments made to the architectural plans render the proposal satisfactory. On the basis of this agreement, and of the assessment of the proposal in its setting prepared by Mr John Oultram in the Statement of Heritage Impact dated October 2022, I accept no detriment derives to either the Woollahra HCA or nearby heritage items.

21. The site is identified on the relevant map at cl 6.1(2) of the WLEP as Class 5 Acid Sulfate Soils (ASS). While the site is within 500m of Class 3 ASS, and excavation is proposed, I accept such excavation will not lower the watertable in the Class 3 land when the topography is properly understood.

22. The development application is supported by a Geotechnical Report prepared by Crozier, dated September 2022 which describes field testing and results for soil stability and drainage patterns, anticipated site de-watering, the nature of fill on the site and structural integrity to surrounding properties. A supplementary Geotechnical Report by the same author dated 31 January 2024 provides additional information on the bearing strength of sandstone bedrock. A Pre-DA Structural Report prepared by GZ Consulting Engineers dated 20 February 2024 (Structural Report) proposes a construction methodology for demolition, excavation and construction of the proposed development that considers the structural integrity of adjoining properties. Stormwater drainage plans prepared by Stellen Consulting dated October 2022 demonstrate the collection and onsite detention of stormwater and subsurface water. Having considered those matters required to be considered at cl 6.2(3) of the WLEP, I conclude the matters are adequately dealt with.

23. Clause 6.9 of the WLEP requires consideration of tree canopy cover in an R3 zone, however this provision does not apply to land within the Woollahra HCA.

State Environmental Planning Policy (Transport and Infrastructure) 2021

24. As the site is located in the vicinity of the Eastern Suburbs railway line, the provisions of Subdiv 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 apply.

25. Section 2.99 provides for excavation in, above, below, or adjacent to rail corridors where that excavation is proposed to be of at least 2m below ground on land within, below or above a rail corridor (subs (1)(a)), or within 25m (measured horizontally) of a rail corridor (subs (1)(b)).

26. Development consent is precluded by subs (2) unless written notice of the development application is given to the rail authority, and any response is considered.

27. The parties agree that written notice of a kind required by subs (2) has been provided to the relevant rail authority, being Transport for NSW (TfNSW), and that the response from TfNSW dated 19 March 2024 has been fully incorporated into agreed conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

28. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site and the removal of eight trees is proposed. The development application is supported by an Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 11 October 2022, that recommends the retention of 2 mature trees on the site fronting Edgecliff Road, and the retention of all existing street trees.

29. The parties agree that the site is located within the Sydney Harbour Catchment to which Ch 10 of the Biodiversity SEPP applies, however is not within the Foreshores and Waterways area.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. On the basis of the historical assessment of the site that appears in Section 2.0 of the Heritage Impact Statement prepared by Mr John Oultram dated October 2022, I accept the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

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

31. The application is accompanied by a BASIX certificate (Cert No A474763-03 dated 15 February 2024)) prepared by Luigi Roselli Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

32. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

33. 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.

34. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

35. The Court notes that:   

1. The Respondent, the Council of the Municipality of Woollahra, as the relevant consent authority, has approved under section 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending development application No DA 440/2022/1 to rely on the documents listed below:

Reference	Description	Author/Drawn	Date
S8.2-02 Issue C	Plan – Site	Luigi Roselli	20.02.24
S8.2-03 Issue C	Plan – Basement Floor	Luigi Roselli	20.02.24
S8.2-04 Issue C	Plan – Ground Floor	Luigi Roselli	20.02.24
S8.2-05 Issue C	Plan – First Floor	Luigi Roselli	20.02.24
S8.2-06 Issue C	Plan – Attic Floor	Luigi Roselli	20.02.24
S8.2-07 Issue C	Plan - Roof	Luigi Roselli	20.02.24
S8.2-08 Issue C	Elevation – North	Luigi Roselli	20.02.24
S8.2-09 Issue C	Elevation – East	Luigi Roselli	20.02.24
S8.2-10 Issue C	Elevation - South	Luigi Roselli	20.02.24
S8.2-11 Issue C	Elevation – West & Section CC	Luigi Roselli	20.02.24
S8.2-12 Issue C	Section AA	Luigi Roselli	20.02.24
S8.2-13 Issue C	Section BB	Luigi Roselli	20.02.24
S8.2-20 Issue C	External Materials	Luigi Roselli	20.02.24
S8.2-27 Issue C	Plan – Ground Floor Demolition	Luigi Roselli	20.02.24
S8.2-28 Issue C	Plan – First Floor Demolition	Luigi Roselli	20.02.24
S8.2-29 Issue C	Section AA Demolition	Luigi Roselli	20.02.24
S8.2-30 Issue C	Section BB Demolition	Luigi Roselli	20.02.24

Other Plans/Reports

Document	Prepared by	Issue	Drawing No	Date
Pre-DA Structural Report	GZ Consulting Engineers Pty Ltd	J22027	20 February 2024
BASIX Certificate	NSW Department of Planning, Industry and Environment	A474763-03	15 February 2024

2. The Applicant has filed the amended plans and other documents listed above on 20 February 2024.

Orders

36. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA 440/2022/1 for alterations and additions to convert an existing mixed-use building to a single dwelling with basement garaging, landscaping and a new swimming pool at 382 Edgecliff Road, Woollahra, subject to conditions contained in Annexure A.

T Horton

Commissioner of the Court

234763.23 Annexure A

**********

Decision last updated: 26 March 2024