Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council

[2023] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1452

Hearing dates:

Conciliation conference on 08 June 2023

Date of orders:

16 August 2023

Decision date:

16 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The application is granted.

(2) Development consent DA30/2021 granted by the Land and Environment Court on 28 October 2021 is modified as set out in Annexure B.

(3) The terms of the consolidated Development Consent DA30/2021, as modified, are set out in Annexure C.

Catchwords:

APPLICATION – application to modify a development consent granted by the Court – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Environmental Planning and Assessment Regulation 2021, ss 29, 100, 102, 113

Land and Environment Court Act 1979, s 34

Cases Cited:

Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1662

Category:

Principal judgment

Parties:

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

Representation:

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

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

File Number(s):

2022/385156

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an application to the Court to modify the development consent granted by the Court in Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1662 for alterations and additions to the existing residential flat building at 780-786 New South Head Road, Rose Bay. The application seeks to modify the approved alterations and additions at the basement levels, in its external design, and in the open space. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 8 June 2023. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on 28 July 2023, following the approval by the respondent, as the consent authority as defined under the EPA Act, of an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made in the amended modification application were to consolidate all of the amendments sought to the development consent, including those that had been sought in DA30/2021/2 which was a separate application made directly to the respondent.

4. The modification application, as amended, is now for the deletion of one of the basement levels so that car parking is provided on a single basement level, the reconfiguration and lowering of the remaining basement level, an extension and modification at the lower ground floor to add two storage rooms, changes to the stormwater drainage infrastructure, changes to the fenestration at the rear and side elevations, changes to the rear balustrades, changes to the side wings and front balconies, changes to the skylights and solar panels, changes to the external stair to the north-eastern corner of the site and the addition of a partially above-ground lap pool at the south-western corner of the site and outdoor shower and access stairs, the conversion of the front communal open space to private open space, the demolition of the front retaining wall, and the deletion of the common pedestrian access lift and stairs and addition of an external bridge linking the pedestrian entrance from the site frontage to the centre of the front elevation at level 1.

5. 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. As the presiding Commissioner, 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 modification concerns alterations to the pedestrian access, the basement, the open space and ancillary aspects of the built form, and does not change the external envelope or predominant appearance of the heritage building as altered by the development consent. The modification of the development the subject of the consent does not alter any essential element or result in any change to the type or size of the development, which remains for a residential flat building with the retention and restoration of the heritage item.

6. Further, the modification application was notified between 22 February and 9 March 2023, and two submissions were received. I am therefore satisfied that the notification requirements of s 4.55(2)(c) have been met, and, consistent with s 4.55(2)(d), I have considered the issues raised in the submissions received in response to the proposed modification.

7. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 22 June 2023. The parties agree that s 102(1) of the EPA Regulation 2021 does not require a statement by a qualified designer with respect to this modification application, as the original development application was not required to be accompanied by a design verification statement under s 29 of the EPA Regulation 2021 (and was instead required to be accompanied by such a statement under a clause of the former regulations).

8. 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)).

9. 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.

10. The Court notes:

1. That the Respondent as the relevant consent authority has agreed, under section 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the application for modification DA30/2021/3 of the development consent granted by the Land and Environment Court on 28 October 2021 by DA30/2021, to rely on the following plans documents listed in the schedule at Annexure A.

2. The Applicant has filed the amended plans and documents listed in Annexure A with the Court on 25 July 2023.

11. The Court orders that:

1. The application is granted.

2. Development consent DA30/2021 granted by the Land and Environment Court on 28 October 2021 is modified as set out in Annexure B.

3. The terms of the consolidated Development Consent DA30/2021, as modified, are set out in Annexure C.

……………………….

J Gray

Commissioner of the Court

Annexure A (158487, pdf)

Annexure B (237596, pdf)

Annexure C (1072903, pdf)

**********

Decision last updated: 16 August 2023