Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1391

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1391

Hearing dates:

Conciliation conference on 26 April 2024

Date of orders:

09 July 2024

Decision date:

09 July 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development application no. DA333/23 for alterations and additions to residential flat building at 780-786 New South Head Road, Rose Bay NSW is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – development application – alterations and additions to an existing residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 2.22, 4.15(1)(a)(e), 8.15(3); Sch 1 Pt 1

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 Pt 6.2 ss 6.6, 6.7, 6.9

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 145, 147; Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

State Environmental Planning Policy Amendment (Housing) 2021, Sch 7A cl 8

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.3A, 4.4, 5.10, 6.1, 6.4, 6.9, Sch 5 Pt 1

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Hillcrest Rose Bay Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/422941

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the deemed refusal by Woollahra Municipal Council (the Council) of development application no. DA333/23 (DA) for alterations and additions to an existing residential flat building on land known as 780-786 New South Head Road, Rose Bay (the site).

2. 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 26 April 2024. I presided over the conciliation conference.

3. During that process, the Council approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the DA to address the contentions raised in the Council’s Statement of Facts and Contentions (SOFAC). The documents comprising the amended DA are set out in the table below and were filed with the Court on 14 June 2024.

Tab 1. Architectural plans
Drawing Number	Plan name	Date		Revision	Prepared By
DA000_AA	Cover Sheet	8 May 2024		B	Woods Bagot
DA001_AA	Project Summary	8 May 2024		B	Woods Bagot
DA103.1_AA	Lower Ground – Deletion Plan	8 May 2024		B	Woods Bagot
DA103.2_AA	Lower Ground – Amended Plan	8 May 2024		B	Woods Bagot
DA104.1_AA	Ground Level – Deletion Plan	8 May 2024		B	Woods Bagot
DA104.2_AA	Ground Level – Amended Plan	8 May 2024		B	Woods Bagot
DA105.1_AA	Level 01 – Deletion Plan	8 May 2024		B	Woods Bagot
DA105.2_AA	Level 01 – Amended Plan	8 May 2024		B	Woods Bagot
DA106.1_AA	Level 02 – Deletion Plan	8 May 2024		B	Woods Bagot
DA106.2_AA	Level 02 – Amended Plan	8 May 2024		C	Woods Bagot
DA107_AA	Roof Plan – Amended Plan	8 May 2024		B	Woods Bagot
DA201_AA	Elevations – East and North	8 May 2024		B	Woods Bagot
DA202_AA	Elevations – West and South	8 May 2024		B	Woods Bagot
DA301_AA	Sections	8 May 2024		B	Woods Bagot
DA520_AA	FSR Diagram	8 May 2024		B	Woods Bagot
DA601_AA	Views from the Sun (Existing) 778 New South Head Road	8 May 2024		B	Woods Bagot
DA602_AA	Views from the Sun (Proposed) 778 New South Head Road	8 May 2024		B	Woods Bagot
DA611_AA	Shadow Diagram – 9am	8 May 2024		B	Woods Bagot
DA612_AA	Shadow Diagram – 12pm	8 May 2024		B	Woods Bagot
DA614_AA	Shadow Diagram – 3pm	8 May 2024		B	Woods Bagot
Other documents
Description			Date
Tab 2. AA DA Supplementary Information prepared by Woods Bagot			8 May 2024
Tab 3. Summary Letter prepared by Architectural Projects (with enclosures)			14 March 2024
Tab 4. BASIX Assessment Report prepared by ADP Consulting • Tab 4a. NaTHERS Group Certificate; • Tab 4b. Stamped Drawings; and • Tab 4c. BASIX Certificate.			29 May 2024
Tab 5. Design statement prepared by Woods Bagot			29 May 2024
Tab 6. Addendum to the statement of environmental effects prepared by GSA Planning			22 May 2024

4. Having resolved the contentions raised, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

5. Based on the evidence and the submissions of the parties in respect to my jurisdiction, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. The preconditions of relevance are addressed in a summary form below:

Owner’s consent

7. Owner’s consent has been obtained from each of the owners of the site as required by s 23(1) of the EPA Reg (Tab 3 of the Class 1 Application).

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

8. Chapter 4 of the RH SEPP applies to the land.

9. As part of the assessment of the application, consideration was given to whether the site was contaminated as required by s 4.6 of the RH SEPP.

10. The Council submits and I accept that the land is suitable for the purpose for which the development is proposed to be carried out (the existing building on the site is used for residential purposes and will continue to be used for residential purposes after the grant of consent).

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

Chapter 6 ‘Water catchments’

11. The site is within the Sydney Harbour Catchment. Therefore, Pt 6.2 of the BC SEPP applies to the site.

12. The Council submits and I accept that the proposed development ensures that:

• the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

• the impact on water flow in a natural waterbody will be minimised.

(s 6.6(2) of the BC SEPP).

13. The Council submits and I accept that the proposed development ensures that:

• the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development;

• there will be no direct, indirect or cumulative adverse impact on aquatic reserves;

• the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised; and

• the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised

(s 6.7(2) of the BC SEPP).

14. The Council submits and I accept that the proposed development:

• will not alter and will maintain the approved public access to and from natural waterbodies for recreational purposes without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation;

• will maintain existing points of public access between natural waterbodies and the site of the development will be stable and safe; and

• is not on land forming part of the foreshore of a natural waterbody.

(s 6.9(2) of the BC SEPP).

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

15. The State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) was repealed on 14 December 2023 by the State Environmental Planning Policy Amendment (Housing) 2023. The provisions of SEPP 65 are now found in Ch 4 (‘Design of residential apartment development’) of the Housing SEPP. The provisions of Ch 4 of the Housing SEPP apply to development applications made, but not determined, on or before 14 December 2023 by operation of cll 8(1)(a) and 8(2A) of Sch 7A of the Housing SEPP. Chapter 4 of the Housing SEPP rather than SEPP 65, therefore, applies to the DA.

16. The DA (as amended) is accompanied by a design statement dated 29 May 2024 fulfilling the requirements of s 29 of the EPA Reg (Tab 5 of applicant’s s34 agreement bundle). The Council submits and I accept that the Design report addresses the design principles for residential apartment development and the objectives in Parts 3 and 4 of the Apartment Design Guide (ADG).

17. The Council submits and I accept that the design statement at Tab 5 of the applicant’s s34 agreement satisfactorily addresses the matters in s 147(1) of the Housing SEPP namely:

• the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9;

• the ADG; and

• any advice received from a design review panel within 14 days after the consent authority referred the DA to the panel.

18. For completeness I note that there is no requirement for the amended DA to be referred to a design review panel under s 145(2) of the Housing SEPP as a design review panel has not been constituted for the local government area in which the development will be carried out (s 145(3)(a) of the Housing SEPP).

Woollahra Local Environmental Plan 2014 (LEP)

19. The Woollahra Local Environmental Plan 2014 applies to the site.

Clause 2.3 ‘Zoning of land to which Plan applies’ and ‘Land Use Table’

20. The site is located in Zone R3 Medium Density Residential pursuant to the provisions of the LEP.

21. The proposed alterations and additions to the residential flat building is permitted with consent in the R3 zone.

22. Clause 2.3(2) of the LEP requires that the consent authority have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

23. The Council submits and I accept on the evidence that the development gives effect to the objectives of the R3 zone in that the proposed development will:

• provide for the housing needs of the community;

• provide for a variety of housing types; and

• ensures that the development is of a height and scale that achieves the desired future character of the neighbourhood.

Clause 4.3 ‘Height of Buildings’

24. The site is mapped with a height of 16.5 m. The proposed development complies with the maximum permitted building height under cl 4.3 of the LEP.

Clause 4.3A ‘Exceptions to building heights (Areas A-H)’

25. The site is identified as “Area D” on the Height of Buildings Map (Sheet HOB_005). The proposed development, at the highest part of the land, does not exceed the height of 7.5 m as required by cl 4.3A of the LEP.

Clause 4.4 ‘Floor Space Ratio’ (FSR)

26. The site is subject to a FSR control of 1.3:1 under cl 4.4 of the LEP. The proposed development complies with the maximum FSR under cl 4.4 of the LEP.

Clause 5.10 ‘Heritage conservation’

27. The site is listed as a locally significant item of environmental heritage (item I694) under the provisions of Pt 1 of Sch 5 of the LEP. The site is not within a heritage conservation area.

28. Clause 5.10(4) requires an assessment of the effects of the proposed development on the heritage significance of the heritage item concerned.

29. The Council submits and I accept that the proposed development has an acceptable effect on the heritage significance of the heritage item having regard to the following evidence:

• pages 62-73 of the Heritage Impact Statement (Tab 9 of the Class 1 Application);

• page 5 of the summary letter prepared by Architectural Projects (Tab 3 of the applicant’s s34 agreement bundle); and

• pages 10-11 of the Statement of Environmental Effects (SEE) (Tab 6 of the Class 1 Application).

Clause 6.9 ‘Tree canopy cover in Zones R2 and R3’

30. The proposed development retains the approved number of canopy trees on the site.

31. The proposed development:

• incorporates planning and design measures to enable the retention and planting of trees to minimise the urban heat island effect, and

• will avoid, minimise or mitigate adverse impacts on the existing tree canopy.

32. This is confirmed at p 11 of the SEE.

Clause 6.1 ‘Acid Sulfate Soils’

33. The site is located on land identified as Class 5 acid sulfate soils. However, the proposed development does not include works below 5 m Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 m AHD on the adjacent Class 3 land. This is confirmed in the Addendum to the SEE (on pp 1-2).

EPA Act

Notification

34. The DA was notified between 4 October 2023 to 19 October 2023 in accordance with s 2.22 and Pt 1 of Sch 1 of the EPA Act. A total of three submissions were received.

Section 4.15(1)(a)(e) – the public interest

35. The Council submits that the proposed development as amended addresses the concerns raised by the objectors and is now in the public interest. This is said to be confirmed on p 14 of the SEE.

EPA Reg

Section 27 ‘BASIX development’

36. BASIX certificate no. 1316782M_08 was issued on 29 May 2024. This document is located at Tab 4(c) of the applicant’s s34 agreement bundle.

Conclusion and orders

37. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

38. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development application no. DA333/23 for alterations and additions to residential flat building at 780-786 New South Head Road, Rose Bay NSW is determined by the grant of development consent, subject to the conditions set out in Annexure “A”.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (434792, pdf)

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Amendments

10 July 2024 - Correction to typographical error at [1].

Decision last updated: 10 July 2024