Hakoah Club Ltd v Woollahra Municipal Council

[2021] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hakoah Club Ltd v Woollahra Municipal Council [2021] NSWLEC 1458

Hearing dates:

Conciliation conference on 2 August 2021

Date of orders:

10 August 2021

Decision date:

10 August 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court Orders:

(1) The appeal is upheld.

(2) Development Application No. DA477/2019 for the first stage of the development of White City for a multi-purpose sports centre and registered club facilities including site remediation at 30 Alma Street, Paddington is approved subject to conditions at Annexure “A”.

(3) The Respondent is directed to register the development consent on the NSW planning portal in accordance with s 4.10(1) of the Environmental Planning and Assessment Act 1979 within 14 days.

Catchwords:

DEVELOPMENT APPLICATION – consent granted by Sydney Eastern City Planning Panel – Multi-purpose sports centre, registered club facilities, and site remediation at White City – objection to certain conditions – conciliation – agreement between the parties – satisfaction of jurisdictional preconditions to the grant of development consent – non-compliance with development standards for height – cl 4.6 objection – whether pre-conditions to specific height control for White City have been met – impacts on views – maintenance of heritage significance of White City – flood planning – site contamination – acid sulfate planning – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 4.22, 8.7, 8.15

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Woollahra Local Environmental Plan 2014

Category:

Principal judgment

Parties:

Hakoah Club Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/64018

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) in respect of the decision by Sydney Eastern City Planning Panel (Panel) to grant conditional consent (Stage 1 consent) to Development Application DA477/2019/1 (DA) for a multi-purpose sports centre and registered club facilities, including site remediation at Lot 2 in Deposited Plan 1114604 known as 30 Alma Street, Paddington and commonly referred to as White City (Site).

2. The Applicant is dissatisfied with the decision of the Panel in that it objects to the imposition of certain conditions of the Stage 1 consent.

3. Woollahra Municipal Council (Council) is the proper Respondent to the appeal by virtue of s 8.15(4) of the EP&A Act but the Council is subject to the control and direction of the Panel in connection with the conduct of the appeal.

4. A concept for the site was granted development consent on 15 December 2015 (Concept consent) pursuant to s 4.22 of the EP&A Act. The Concept consent was modified on 5 September 2019. The Concept consent (as modified) approves indicative land uses, building envelopes and heritage interpretation strategy only.

5. The Concept consent does not authorise the carrying out of development on any part of the site concerned unless consent is subsequently granted to carry out development on the site following a further development application (s 4.22(4)(a) of the EP&A Act). This is such a further development application.

6. The proposal in the DA involves:

Demolition of all buildings on the site with the exception of the Southern Grandstand and the Northern Grandstand arches;

Excavation;

Construction of the following:

new internal road and pedestrian network including landscaping and at-grade parking;

football field including lighting poles;

9 tennis courts including lighting poles;

adaptive re-use of the retained southern grandstand to create the "sports" building adjacent to Glenmore Road which contains:

ground level car parking including new connection to Glenmore Road and gym facilities;

level 1 gym facilities, community facilities, café, outdoor multi-purpose courts with shade structure, and outdoor pool facilities with shade structures including 1 x 25m pool, 1 x learn to swim pool and pool deck area, and plant;

level 2 gym facilities;

level 3 community spaces, and primary pedestrian entry from Glenmore Road.

2 storey “tennis pro-shop” building to the north-east of the sports building

3 storey triangular "Club" building which contains:

ground floor porte cochere, entry lobby, foyer, change rooms and toilet facilities, loading dock, external 260 seat grandstand and tuckshop, referee/medical rooms, waste rooms, Hakoah and community offices;

level 2 double height club community space, foyer, kitchen/catering areas, restaurant/bar, lounge and adjacent viewing terrace, and club board room;

level 2 mezzanine level containing toilet facilities, plant, staff room and bridge to the south which connects with a lift to access the car parking level at the ground level of the “sports” building;

level 3 community rooms and office; and

roof level which contains a plant room.

7. On 2 August 2021 I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act).

8. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and lodged an agreement pursuant to s 34 of the Court Act. The proposed decision was to grant development consent subject to conditions which vary in some respects from the conditions imposed by the Panel.

9. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. That is, it is not the Court’s function to assess the overall merits of the development application, but it must be satisfied that it has the power to give effect to the agreement which has been reached by the parties.

10. The parties’ agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent.

11. There are a number of matters about which I must be satisfied before I have the power to grant development consent.

12. Section 4.24(2) of the EP&A Act provides:

(2)  While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.

13. The Concept consent is of course in force and accordingly the determination of the DA cannot be inconsistent with the concept proposal. The indicative land uses are generally the same with minor changes and the Applicant’s Envelope Comparison plan (A1006) demonstrates that the building form proposed in the DA is not inconsistent with the building envelope approved by the Concept consent. The Council report to the Panel (at pp 18-19) concluded that the DA was not inconsistent with the Concept consent and the Panel accepted the Council’s recommendation for approval. For the same reasons, including an examination of the Envelope Comparison plan I am satisfied that the consent to the DA proposed to be granted by the parties is not inconsistent with the Concept consent.

14. The proposed development is permissible in its zone – the RE2 Private Recreation pursuant to Woollahra Local Environmental Plan 2014 (WLEP 2014). The objectives of the zone are:

•  To enable land to be used for private open space or recreational purposes.

•  To provide a range of recreational settings and activities and compatible land uses.

•  To protect and enhance the natural environment for recreational purposes.

15. There are two height controls which apply to the site. Clause 4.3 of WLEP 2014 provides as follows:

4.3   Height of buildings

(1)  The objectives of this clause are as follows—

(a)  to establish building heights that are consistent with the desired future character of the neighbourhood,

(b)  to establish a transition in scale between zones to protect local amenity,

(c)  to minimise the loss of solar access to existing buildings and open space,

(d)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e)  to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

16. The Height of Buildings Map sets a height limit for the site of 9.5m.

17. Clause 4.3B of WLEP 2014 is specific to the site and provides:

4.3B   Exceptions to building heights (Area I—White City Tennis Club)

(1)  The objectives of this clause are as follows—

(a)  to retain views from Glenmore Road over certain land surrounding White City Tennis Club,

(b)  to permit a greater maximum building height on part of that land, subject to certain criteria,

(c)  to protect the visual privacy and amenity of nearby residences,

(d)  to conserve and recognise the heritage significance of the existing centre courts.

(2)  Despite clause 4.3, the maximum height of a building on the land identified as “Area I” on the Height of Buildings Map is 11.5 metres if—

(a)  the building is located on the western side of the centre courts, and

(b)  the consent authority is satisfied that the development does not affect view lines from Glenmore Road, and

(c)  the building maintains the heritage significance of White City Tennis Club.

18. Area I is generally to the west of the existing grass tennis courts and the height control is 11.5 metres pursuant to cl 4.3B of WLEP 2014.

19. The height non-compliances are set out in the table below:

Element	Max Height	Variation to 9.5 metre control	Variation to 11.5 metre control
Clubhouse	19.25m	9.75m	7.75m
Shade structure above multi-purpose courts	12.675m	3.175m	1.175m
Pro-shop	11.105	1.605m	N/A

20. Both the Clubhouse and the shade structure are subject in part to the 9m control and subject in part to the 11.5m control.

21. Although the heights of the structures are generally within the building envelopes approved by the Concept consent, because there are exceedances of the height controls, an objection pursuant to cl 4.6 of WLEP 2014 is required in order for development consent to be granted. (The Applicant suggested that on one view an objection was not required, but that was not pressed nor the subject of debate.) The Applicant’s objection pursuant to cl 4.6 of WLEP 2014 (cl 4.6 objection) is by Mr Sutherland of Sutherland & Associates Planning.

22. Before dealing with the cl 4.6 objection it should be observed that cl 4.3B(2) of WLEP 2014 also requires that:

(b)  the consent authority is satisfied that the development does not affect view lines from Glenmore Road, and

(c)  the building maintains the heritage significance of White City Tennis Club.

23. These two matters are separate and distinct from being satisfied that cl 4.6 of WLEP 2014 permits a departure from the height controls. I will first deal with the non-compliance with the development standards on the assumption that cl 4.3B applies to the site, and then return to the pre-conditions to its application.

24. Clause 4.6 WLEP 2014 provides:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

25. In order to have the power to grant development consent, in summary I must be satisfied that:

• the cl 4.6 objection adequately addresses that compliance with the 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;

• as a matter of fact that compliance with the 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; and

• the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

26. Whilst sub-cl 4.6(4)(b) of WLEP 2014 requires concurrence of the Planning Secretary such power can be exercised by the Court pursuant to s 39 of the Court Act. Further, it is clear that there are no matters of significance for State or regional environmental planning and there are no broader matters of public benefit in maintaining the development standards if the other matters in cl 4.6 are satisfied.

27. The cl 4.6 objection (at p 9) maintains that the compliance with the development standards is unreasonable or unnecessary for the following reasons:

“The proposed heights are all contained within the previously approved building envelopes for the site and the variations were supported by the Joint Regional Planning Panel.

The proposed height of the “clubhouse” building is of a very similar level to the top of the Sydney Grammar building to the west as well as the top of the roof of 400 Glenmore Road to the east. In fact, there is only a difference of several metres between the roofs of the existing and proposed buildings such that the proposed buildings will sit comfortably within this family of buildings which are all of essentially the same scale.

Having regard to the planning principle established in the matter of Project Venture Developments v Pittwater Council [2005] NSWLEC 191 most observers would not find the proposed development offensive, jarring or unsympathetic to its location and the proposed development will be compatible with its context.

The proposed development will not result in any meaningful change to the scale of development of the site when viewed from Glenmore Road because it retains and adaptively re-uses the existing southern grandstand which is immediately on the boundary with the street.

The application maintains view sharing across the site.

The proposed variation to height is the result of a desire to minimise the footprint of buildings on the site to preserve as much open space as possible and to maintain the same relationship to the residential neighbours. This is also of assistance in maintaining the flood storage capacity of the site. Compliance with height could be achieved by expanding the footprints of the buildings, however, this is considered to be a less desirable outcome given the height variation still achieves a compatible outcome with the context of the site.

The proposed variation in height does not result in any adverse overshadowing or privacy impacts to adjacent sites. The shadow diagrams submitted with the Stage 1 Concept Plan application illustrated that there is no overshadowing of adjacent residential properties and only a minimal amount of overshadowing of the north-eastern corner of the playground of Sydney Grammar early in the morning on 21 June. The proposed buildings are located a significant distance of over 50 metres from the adjacent residential uses and therefore will not result in any adverse privacy impact.

The non-compliance with the height control does not prevent the achievement of a compatible relationship with the surrounding context and allows for a better outcome strict compliance with the height control which would result in more open space on the site being consumed by the proposed buildings.”

28. Mr Sutherland concludes that the proposal is consistent with the objectives of the development standard and is thereby considered unreasonable or unnecessary to comply with the development standards in the circumstances of the case.

29. The environmental planning grounds relied upon by Mr Sutherland in the cl 4.6 objection which are said to justify contravening the development standards are (at pp 10-11):

“The proposed heights are all contained within the previously approved building envelopes for the site and the variations were supported by the Joint Regional Planning Panel.

The proposed variation in height does not occur along the Glenmore Road frontage and the proposed buildings do not exceed the permissible height when viewed from Glenmore Road.

The proposed arrangement of heights are commensurate with the heights of the surrounding and adjacent buildings and therefore are compatible the existing scale of development within the visual catchment of the site.

The proposed development maintains view lines over the site and the proposed variation in height does not compromise the ability to achieve increased view sharing.

The proposed variation to height does not result in any adverse impacts to nearby residential properties in relation to overshadowing, visual or acoustic privacy.

The proposed variation to the height development standard allows a reduction in building footprints on the site which facilitates a greater amount of open space on the site for outdoor recreation, increased flood storage capacity on the site, and reduced impacts to nearby residential properties due to increased separation distances.

Due to the topography of the site and steep embankment on the southern boundary down into the site, the majority of the proposed scale is located below the Glenmore Street level.

Strict compliance with the development standard would result in an inflexible application of the control that would not deliver any additional benefits to the owners or occupants of the surrounding properties or the general public.

The proposed variation allows for the most efficient and economic use of the land”

30. The cl 4.6 objection sets out (at p 12) the objectives of the RE 2 zone and says:

“The proposal seeks development consent for the development and use of the site as a sporting, cultural and community facility. The proposed development will significantly increase the range of available sporting and recreational activities within the site in a new and updated contemporary setting. The site layout and arrangement of building and uses retains a similar relationship to adjacent residential uses and therefore the proposed uses of the site remain compatible with the adjacent sites. An acoustic report and light spill report accompany this application and demonstrate that the proposal is compatible with the adjacent uses because they do not result in an unacceptable impact. Ultimately, the proposed development will serve to reinvigorate the site and will strengthen the capacity of the site to satisfy the zone objectives. For the reasons given the proposal is considered to be consistent with the objectives of the RE2 Private Recreation zone.”

31. The Council in its assessment report to the Panel (Council assessment report) gave detailed consideration to the cl 4.6 objection at pp 26-33. Its conclusion at pp 33-34 was:

“The Clause 4.6 variation request is considered to be well founded as the proposal demonstrates the following:

The objectives of the Clause 4.3 Height of buildings development standard have been satisfied, notwithstanding the variation;

The objectives of the Clause 4.3B Exceptions to building heights (Area I – White City Tennis Club) have been satisfied, notwithstanding the variation;

The objectives of the RE2 Private Recreation zone have been satisfied;

Strict compliance with the height of building development standards would be unreasonable and unnecessary in the circumstances of the development;

There are sufficient environmental planning grounds to justify the proposed variation;

It is considered reasonable and appropriate to vary the height of buildings development standard to the extent proposed;

The proposed development is in the public interest and there is no public benefit in maintaining the standard in this instance;

The proposed variation will not hinder the attainment of the objects specified in Section (sic) 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979; and

The contravention does not raise any matter od State or Regional significance.

The proposal is in the public interest and consistent with the objectives of the building height development standard (Clause 4.3) and the site specific building height objectives (Clause 4.3B) of the Woollahra LEP 2014. The departures from the controls are supported.”

32. In its determination of 3 September 2020 the Panel expressed its satisfaction with the variation of the development standards.

33. I agree with the Council assessment that the cl 4.6 objection is well founded. I am satisfied that the cl 4.6 objection adequately demonstrates that:

• compliance with the development standard is unreasonable or unnecessary in the circumstances of the case,

• there are sufficient environmental planning grounds to justify contravening the development standard.

34. On the basis of the cl 4.6 objection and the Council assessment I am satisfied that compliance with the development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standards.

35. For the same reasons, in my opinion the proposed development will be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the zone in which the development is proposed to be carried out.

36. It follows that I uphold the cl 4.6 objection and the non-compliance with the height controls in itself is not a jurisdictional barrier to the grant of development consent.

37. Nevertheless, I must be satisfied that the provisions of cl 4.3B(2) are satisfied, for the 11.5 m control to apply, namely:

(a)  the building is located on the western side of the centre courts, and

(b)  the consent authority is satisfied that the development does not affect view lines from Glenmore Road, and

(c)  the building maintains the heritage significance of White City Tennis Club.

38. The higher control of 11.5 m only applies to that part of the buildings located on the western side of the centre courts.

39. As to view lines from Glenmore Road the Council assessment, when dealing with objective (a) of cl 4.3B, concluded (at p32) that:

“Significant public views from Glenmore Road will be generally maintained (refer to Section 8.10). By concentrating sporting uses within the eastern half od the site, the sense of an open valley is maintained. The proposal therefore achieves consistency with objective (a).”

40. In Section 8.10 of the Council assessment (from p 68) the views and vistas of and over the site, including from Glenmore Road, are analysed. On p 417 of the Council assessment a photograph demonstrates the view from Glenmore Road with the comment beneath:

“The vista towards the site from Glenmore road would not be detrimentally affected, as the eastern portion of the site will be retained as open space (tennis courts and football field), and the open vista from this location would be maintained.”

41. On the basis of that material I am satisfied that the development does not affect view lines from Glenmore Road and thereby sub-cl 4.3B(2)(b) is satisfied.

42. The heritage significance of White City Tennis Club is dealt with in detail in the context of Part 5.10 of WLEP 2014, and more broadly, from p 34 of the Council assessment. The Council assessment concludes, as accepted by the Panel, that subject to the imposition of specific conditions of development consent, the heritage significance of White City is maintained notwithstanding the increased height of the clubhouse and the shade structure. Sub-cl 4.3B(2)(c) is accordingly satisfactorily addressed.

43. It follows that the jurisdictional pre-conditions to the application of cl 4.3B to the development have been satisfied, and that the cl 4.6 objection in relation to the non-compliances with the two development standards relating to height satisfy the provisions of cl 4.6 of WLEP 2014.

44. The site is within a flood planning area and so the provisions of cl 5.21 of WLEP 2014 apply. A ‘Flood Risk Assessment’ has been prepared by BG&E dated 21 November 2019 and lodged with the DA (and found at tab 25 of the Class 1 application).

45. The Flood Risk Assessment demonstrates, and I accept, that the development:

1. is compatible with the flood function and behaviour on the land;

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

4. incorporates appropriate measures to manage risk to life in the event of a flood; and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks of watercourses.

46. I note that the Council officers in the Council assessment (at p 51) also accepted the conclusions of the Flood Risk Assessment.

47. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the land. A 'Remediation Action Plan and Acid Sulfate Soil Management Plan' has been prepared by Douglas Partners dated July 2020 (RAP).

48. The land is contaminated (see page 12 of Appendix B of the RAP, section B5.5.4). The authors of the RAP opine at p 37 Section 14 of the RAP, and I accept, that the land will be suitable, after remediation for the purpose for which the development is proposed to be carried out as required by cl 7(1)(b) of SEPP 55.

49. The conditions of development consent provide for the remediation of the site in accordance with the RAP before it is used for that purpose (as required by cl 7(1)(c) of SEPP 55).

50. The Council assessment (at p 20) concluded that the relevant provisions of SEPP 55 had been satisfied and I too am so satisfied based upon the RAP and the Council assessment.

51. Under cl 6.1(2) of the WLEP 2014 , development consent is required for the carrying out of works described in the table to the subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those work.

52. Clause 6.1 (3) of the LEP, provides that development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils (ASS) management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

53. The southern part of the subject site is within a Class 5 Acid Sulphate Soils Area whilst the northern part of the site is within a Class 3 Acid Sulphate Soils Area as identified Acid Sulfate Soils Map Sheet ASS_003.

54. The RAP was submitted with the subject application. It has been prepared for the works in accordance with the Acid Sulfate Soils Manual (p 1 of the RAP). That report identified that some disturbance to ASS is expected due to excavation and piling works. Council’s Environmental Health Officer reviewed the RAP has advised that it is satisfactory.

55. On the basis of the RAP and Council’s assessment I am satisfied that an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority in accordance with cl 6.1(3) of WLEP 2014.

56. Having considered the material provided to the Court, and for the foregoing reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act.

57. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

58. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

59. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA477/2019 for the first stage of the development of White City for a multi-purpose sports centre and registered club facilities including site remediation at 30 Alma Street, Paddington is approved subject to conditions at Annexure “A”.

3. The Respondent is directed to register the development consent on the NSW planning portal in accordance with s 4.10(1) of the Environmental Planning and Assessment Act 1979 within 14 days.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (1102588, pdf)

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Decision last updated: 10 August 2021