Initial Action Pty Ltd v Woollahra Municipal Council (No 2)

[2019] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:	Initial Action Pty Ltd v Woollahra Municipal Council (No 2) [2019] NSWLEC 1151
Hearing dates:	20 – 21 February 2019
Date of orders:	03 April 2019
Decision date:	12 March 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1)   The appeal is upheld. (2)   Development Application No. 2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than Exhibits B and 8, are returned.
Catchwords:	DEVELOPMENT APPLICATION: residential apartment building – contravention of the height of buildings development standard – volume of excavation – height of front fence
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097
Category:	Consequential orders (other than Costs)
Parties:	Initial Action Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: I Hemmings SC with N Hammond (Applicant)   Solicitors: Hones Lawyers (Applicant) P Rigg, Peter R Rigg (Respondent)
File Number(s):	2017/63470
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2016/367/1 for a residential flat building (the proposal) at 12-16 William Street, Double Bay (the site) by Woollahra Municipal Council (the Council).

Issues

2. The Council’s contentions can be summarised as:

• The proposal is excessive in height because the top parapet is 13.1m and the lift overrun is 13.2m above existing ground level, which contravenes the height of buildings development standard of 10.5m. As a consequence, the proposal fails to achieve the desired future character of the Double Bay Precinct.

• The proposal will have an unacceptable impact on private views from 45-51 Cross Street, Double Bay (Georges Centre).

• The proposal results in excessive excavation. The proposed volume of excavation is 4,045m³ which exceeds the excavation control for the site by 193%. The additional and non-compliant volume of excavation is directly correlated to the non-compliant penthouse apartment and the additional car parking, storage, garbage, services, lift access and facilities needed to cater for the penthouse level.

• The 1.8m front fence should be reduced to 1.5m with 50% transparency to comply with the relevant planning control.

Background

3. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, the Chief Judge upheld an appeal on a question of law and set aside the decision and orders of the Commissioner in Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734. His Honour made an exclusionary remitter order that these proceedings be determined by a Commissioner or Commissioners in accordance with his reasons for judgment.

4. The contentions were determined and directions were handed down on 12 March 2019 (Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097 at [73]), as follows:

“The Court directs that:

(1) The applicant is to amend the architectural drawings (Exhibit C) as follows:

(a) The satellite dish shown on the roof of the penthouse (DA1.11 of Exhibit C) is to be deleted as agreed by the parties and the basement exit stair erroneously shown externally in the north-eastern corner of the first and second floor plans (DA1.08 and DA1.09) is to be deleted.

(b) The dimensions of each setback from the boundary are to be shown on the Ground Floor Plan and the dimensions of each setback from the boundary are to be shown on the Penthouse Plan. The non-trafficable roof areas of the Penthouse Plan are to be clearly indicated as non-trafficable.

(c) The notes on the architectural drawings referring to previous iterations of the proposal and the footprints of the existing buildings can be deleted.

(d) The front fence to William Street, excluding the main entry structure, is to be reduced to a maximum height of 1.5m above ground level with 50% transparency and this is to be clearly indicated in notes and on the elevations and sections. The hydrant booster is to be located away from the substation and the solid portion to the services is to be reduced to a height of 1.2m, with a maximum overall height of 1.5m (see Exhibit 10, par 104).

(2) The amended architectural drawing set is to be filed and served within 2 weeks of the date of this judgment.

(3) The condition regarding the front fence is to be deleted. The amended conditions of consent are to be filed one week after the filing of the architectural drawings.

(4) Liberty to restore on 2 days’ notice. Final orders will be made in chambers.”

5. Those directions have now been complied with. The amended architectural plans were filed 27 March 2019 and the amended conditions of consent (Annexure A) were filed 3 April 2019.

Orders

6. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits B and 8, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 08 April 2019