Irving v Woollahra Municipal Council

[2025] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation:

Irving v Woollahra Municipal Council [2025] NSWLEC 1118

Hearing dates:

Conciliation Conference 12 February 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application DA 220/2024/1 for alterations and additions to the existing dwelling including new single garage structure at the rear at 38 William Street, Paddington NSW 2021, subject to conditions at Annexure A.

(3) 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 in the amount of $2,000 to be paid within 21 days of the date of these orders.

Catchwords:

DEVELOPMENT APPEAL – alteration and additions to existing dwelling and new single garage – heritage conservation area - conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.6

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Woollahra Local Environmental Plan 2014 cll 4.3, 5.10, 5.21, 6.1, 6.2, 6.9

Texts Cited:

Woollahra Community Participation Plan

Category:

Principal judgment

Parties:

Sharon Gaye Irving (First Applicant)
Mark Allan Irving (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor)(First and Second Applicant)
R Bullmore (Solicitor)(Respondent)

Solicitors:
Boskovitz Lawyers (First and Second Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

2024/418933

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA 220/2024/1 seeking consent for the alterations and additions to the existing dwelling including new single garage structure at the rear with loft above (Proposed Development) at 38 William Street, Paddington legally described as Lot C in DP 443453 (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 has been held on 12 February 2025. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. The conciliation conference commenced on site and the parties explained the amendments to the Proposed Development to the objectors who then advised orally that their main concerns have been addressed. In that regard, the Statement of Facts and Contentions filed by the Respondent on 3 December 2024 provides that the submitted Development Application was notified and advertised for 14 days, between 24 July 2024 and 08 August 2024 in accordance with Chapter 6 of the Woollahra Community Participation Plan. In response to the public notifications of the Development Application, five (5) submission was received objecting to the development and raised the following issues:

1. Insufficient information.

2. Excavation and structural stability concerns.

3. Loft over garage structure.

4. Potential damage on the Jacaranda tree.

5. Unauthorised works.

6. Amenity impacts, including visual privacy and overshadowing.

5. The amendments proposed by the Applicant and agreed by the Respondent include the deletion of the loft over the garage structure and no longer poses a threat to the Jacaranda tree. These changes address the adverse amenity impacts raised by the objectors.

6. 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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be relevant terms of the Woollahra Local Environmental Plan 2014 (WLEP), the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (‘Biodiversity and Conservation SEPP’) and the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties explained how the jurisdictional prerequisites have been satisfied.

8. The Site presently contains a two-storey terrace house with a one-storey rear wing on a rectangular-shaped lot with a frontage of approximately 3.67m to William Street and a rear boundary of approximately 3.70m to Albert Street, a maximum depth of approximately 34.14m and a site area of 126.4m².

9. The Site presents a hardstand area for vehicular access at the rear from Albert Street.

10. The Site is within the Paddington Heritage Conservation Area and is zoned MU1 Mixed Use pursuant to the provisions of WLEP where development for the purposes of single dwellings is permissible in the Zone.

11. Consent is required for the Proposed Development pursuant to cl 5.10 of the WLEP because the exterior of the existing dwelling will be altered. The Site is not a heritage item but is located within the Paddington Heritage Conservation Area (HCA). All properties, which are not heritage items, are considered to be contributory items in the HCA. The Applicant relies on a Heritage Impact Statement (HIS) report prepared by Hoff Naus Studios dated 16 June 2024 filed with the Class 1 Application at Tab 5.

12. The parties agree that due consideration has been given to the effect of the Proposed Development, as amended to the heritage significance of the area. The Proposed Development minimise issues associated with the DA ensuring the significance of the HCA is maintained because the Final Plans retain large amounts of the original fabric remaining on the Site.

13. The Council has a provision for tree canopy at cl 6.9 of the WLEP but this does not apply to the Paddington Heritage Conservation Area.

14. The Proposed Development does not result in any new works which will exceed the maximum height of building development standard of 9.5m as provided for at cl 4.3 of the WLEP and in the maps attached to the WLEP.

15. There is no mapped floor space ratio development standard for this Site under the WLEP.

16. The Site is located within a Class 5 area as specified in the Acid Sulfate Soils Map pursuant to cl 6.1 of the WLEP. However, the Proposed Development is not likely to lower the water table below 1m AHD on any land within 500m of a Class 1, 2 and 3 land classifications. Accordingly, a preliminary assessment is not required and there is unlikely to be any acid sulfate affectation.

17. The Proposed development does not propose any substantial earthworks being limited to any foundations for the proposed new single garage structure at the rear of the Site. I am satisfied that pursuant to cl 6.2 of the WLEP that consent is not required for earthworks because any earthworks are ancillary to the Proposed Development for which consent is being given.

18. The Site is not mapped as being flood affected pursuant to cl 5.21 of the WLEP.

19. Section 4.6 of the Resilience and Hazards SEPP requires the consent authority to not grant consent to development unless it has considered whether the Site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties explain as follows:

1. The Site is not within an investigation area;

2. The Site is currently used as residential premises and not for any use listed in Table 1 of the Contaminated Land Planning Guidelines;

3. the building has been existing for some considerable time and the long-term pre-existing use of the Site has been for residential purposes as evidenced in the HIS.

20. For these reasons, I am satisfied that there has been appropriate consideration and conclude that the Site is unlikely to be contaminated.

21. The Site is within the Sydney Harbour catchment but is outside the Foreshores and Waterways Area as determined by s 6.1 of the Biodiversity and Conservation SEPP.

22. The parties agree, and I am satisfied that the management of stormwater on the Site is unaffected by the Proposed Development and that there will be a neutral impact on biodiversity and that outflows to the catchment will be maintained satisfying those matters at subss 6.6(2)(a) and (b) of the Biodiversity and Conservation SEPP.

23. An amended BASIX certificate has been prepared in respect of the Final Plans and satisfies the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). A condition is included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX Certificate dated 7 February 2025 as required by s 27 of the Environmental Planning and Assessment Regulation 2021.

24. For the above 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 LEC Act. 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.

Notations:

25. The Court notes that:

1. Woollahra Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of DA 220/2024/1 to incorporate the documents listed below:

Reference	Description	Author	Date
DA015 – Rev C DA020 – Rev D DA050 – Rev C DA100 – Rev D DA101 – Rev C DA102 – Rev C DA200 – Rev D DA201 – Rev C DA202 – Rev C DA300 – Rev C DA301 – Rev C DA302 – Rev C DA303 – Rev C	Architectural Plans	All drawings by John Normyle Pty Ltd	17/01/2025 05/02/2025 17/01/2025 05/02/2025 17/01/2025 17/01/2025 05/02/2025 17/01/2025 17/01/2025 17/01/2025 17/01/2025 17/01/2025 17/01/2025
A1782641	BASIX Certificate	NSW Department of Planning and Environment	7 February 2025
DA700 – Rev C	Material & Finishes Schedule	John Normyle Pty Ltd	17/01/2025

(the Amended Development Application)

2. The Amended Development Application was filed with the Court on 12 February 2025.

Orders:

26. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA 220/2024/1 for alterations and additions to the existing dwelling including new single garage structure at the rear at 38 William Street, Paddington NSW 2021, subject to conditions at Annexure A.

3. 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 in the amount of $2,000 to be paid within 21 days of the date of these orders.

E Espinosa

Commissioner of the Court

**********

Decision last updated: 28 February 2025