Hitz v Woollahra Municipal Council

[2020] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hitz v Woollahra Municipal Council [2020] NSWLEC 1184
Hearing dates:	Conciliation conference on 15 April 2020
Date of orders:	21 April 2020
Decision date:	21 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [14]
Catchwords:	DEVELOPMENT APPLICATION – Watsons Bay heritage conservation area – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Land and Environment Court of the New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Michael Hitz (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) M Harker (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/283791
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Woollahra Municipal Council (the Respondent) of Development Application DA 494/18 for the demolition of an existing house and construction of a new house, predominantly within the approved building envelope of DA 375/2016/1, but with increased side and rear boundary setbacks at 19 Cliff Street, Watsons Bay.

2. Leave was granted to the Applicant by the Court on 19 September 2019 to amend the application and rely upon amended plans and other documents that the parties agree substantially address the contentions set out in the Statement of Facts and Contentions, filed with the Court on 4 October 2019. 

3. The Council re-advertised the amended plans, and did not receive objections to the proposal. Subsequent to the amendment of the application, a without prejudice meeting between the parties agreed further amendments for which, by consent, leave is now sought. 

Conduct of the proceedings

4. The matter was listed for a conciliation conference under s34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 15 April 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website. 

5. Consistent with the Pandemic Policy, the Court sought confirmation from the parties on 1 April 2020 of the parties consent to the hearing proceeding by telephone. 

6. The conciliation conference commenced on 15 April 2020 by telephone. No objector submissions at the commencement of proceedings.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 15 April 2020.

8. 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.

9. 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. There are jurisdictional prerequisites contained in the provisions of the Woollahra Local Environmental Plan 2014 (WLEP).

10. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [14]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the WLEP, which permits development for the purpose of a dwelling house with consent, and wherein the objectives of the zone are:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide for development that is compatible with the character and amenity of the surrounding neighbourhood

To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

2. As the site is within the Watson’s Bay Heritage Conservation Area (C14) (HCA), listed under Schedule 5 of the WLEP, the provisions of cl 5.10(4) of the WLEP require that the consent authority, or the Court on appeal, consider the effect of the proposed development on the heritage significance of the area. On the basis of the Heritage Impact Assessment, prepared by Mr Zoltan Kovacs Architect dated February 2019, and the amended plans for which leave is sought, I am satisfied that the proposed development is consistent with the heritage values of the area as set out in cl 3.2.4 of the Woollahra Development Control Plan 2015, consisting of low-scale built form and the collection of small-scale cottages, including important weatherboard groupings. 

3. Clause 6.1 of the WLEP requires an acid sulfate soils management plan (ASSMP), unless a preliminary assessment of the proposal works indicates otherwise. I note the preliminary acid sulfate soil assessment prepared by Environmental Investigation Services dated 28 June 2019 indicates that an ASSMP is not required.

4. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

11. As the jurisdictional prerequisites to the grant of consent have been addressed 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 LEC Act.

12. 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.

13. 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.

14. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the Applicant to rely upon the following amended plans:

Plan Name	Drawing No	Revision	Date	Prepared by
Architectural Plans
Cover	1820	D	16 January 2020	Ian Moore Architects
Site plan - proposed	1820-02-00-01	D	16 January 2020	Ian Moore Architects
Level 01 plan – proposed	1820-02-01-01	D	16 January 2020	Ian Moore Architects
Level 02 plan – proposed	1820-02-01-02	D	16 January 2020	Ian Moore Architects
Level 03 plan – proposed	1820-02-01-03	D	16 January 2020	Ian Moore Architects
Roof plan – proposed	1820-02-01-04	D	20 January 2016	Ian Moore Architects
Street elevation – proposed	1820-02-02-01	D	16 January 2020	Ian Moore Architects
North-east elevation proposed	1820-02-02-02	D	16 January 2020	Ian Moore Architects
North-west elevation proposed	1820-02-02-03	D	16 January 2020	Ian Moore Architects
South-west elevation – proposed	1820-02-02-04	D	16 January 2020	Ian Moore Architects
South-east elevation – proposed	1820-02-02-05	D	16 January 2020	Ian Moore Architects
Section 06 – proposed	1820-02-03-01	D	16 January 2020	Ian Moore Architects
Section 07 – proposed	1820-02-03-02	D	16 January 2020	Ian Moore Architects
Section 08 – proposed	1820-02-03-03	D	16 January 2020	Ian Moore Architects
Section 09 – proposed	1820-02-03-04	D	16 January 2020	Ian Moore Architects
Section 10 – proposed	1820-02-03-05	D	16 January 2020	Ian Moore Architects
Landscape drawings
Landscape plan	Page No. 1-8	-	Provided to Council on 8 April 2020	Stepped Landscape Studio
Construction methodology and drawings
Proposed construction methodology	-	-	3 March 2020, as provided to Council on 25 March 2020	Cantilever Consulting Engineers Pty Ltd
Construction Notes and Typical Details Sheet 1	S00-00	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Construction Notes and Typical Details Sheet 2	S00-01	P2	18 March 2020	Cantilever Consulting Engineers Pty Ltd
Construction Notes and Typical Details Sheet 3	S00-02	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Construction Notes and Typical Details Sheet 4	S00-03	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Construction Notes and Typical Details Sheet 5	S00-04	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Level 1 Floor Plan	S01-00	P2	18 March 2020	Cantilever Consulting Engineers Pty Ltd
Level 1 Sections and Details Sheet	S01-01	P2	18 March 2020	Cantilever Consulting Engineers Pty Ltd
Level 2 Floor Plan	S02-00	P2	18 March 2020	Cantilever Consulting Engineers Pty Ltd
Level 2 Sections and Details Sheet	S02-01	P2	18 March 2020	Cantilever Consulting Engineers Pty Ltd
Level 3 Floor Plan	S03-00	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Level 3 Sections and Details Sheet	S03-01	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Roof Plan	S04-00	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd
Roof Sections and Details Sheet	S04-01	P1	20 June 2019	Cantilever Consulting Engineers Pty Ltd

2. The appeal is upheld.

3. Development Application no. DA494/18 for the demolition of existing house and construction of a new house at 19 Cliff Street, Watsons Bay is approved, subject to conditions contained in Annexure A.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (429 KB)

Plans (5.08 MB)

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Decision last updated: 22 April 2020