Kalyk v Woollahra Municipal Council

[2025] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kalyk v Woollahra Municipal Council [2025] NSWLEC 1088

Hearing dates:

Hearing and Conciliation Conference 22 January 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) Leave is granted to rely on the amended plans and documents referred to in Annexure A.

(2) The appeal is upheld.

(3) Development Application No DA237/2024 for extensive alterations and additions to an existing terrace house (including new basement level, attic and spa) at 76 Moncur Street, Woollahra (Lot 34 Section A DP12), is determined by the grant of consent, subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to terrace house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34

Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38, Sch 7

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1

Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, Sch 5

Category:

Principal judgment

Parties:

Glenda Kalyk (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/393560

Publication restriction:

Nil

JUDGMENT

Introduction

1. 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 237/2024 for extensive alterations and additions to an existing terrace house (including new basement level, attic and spa) at 76 Moncur Street, Woollahra (Lot 34 Section A DP12) (the site) by Woollahra Municipal Council.

2. The matter commenced as a hearing on 22 January 2025 however during the course of the hearing, the parties reached agreement and requested that the matter be relisted for a s 34 conciliation conference. The request was granted, the hearing vacated and a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), commenced. I presided over the conciliation conference.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports, the Council’s bundle of documents filed in the proceedings and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans comprising the amended application were submitted to the Court at the conciliation conference and are listed under Condition 1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The development application is made by the owner of the site, therefore, in accordance with s 23 of the EPA Reg owner’s consent is not required.

2. The Respondent notified the original development application between 24 July to 8 August 2024. One submission was received. An oral submission was also heard at the commencement of the hearing from an adjoining neighbour at 74 Moncur Street. In reaching agreement, the parties have considered the concerns raised in the submissions.

Woollahra Local Environmental Plan 2014

1. The development is for the purposes of alterations and additions to a dwelling house, which is a permissible use in the R2 – Low Density Residential zone in which the site is located pursuant to Woollahra Local Environmental Plan 2014 (WLEP).

2. The development is consistent with the objectives of the R2 – Low Density Residential zone as required by cl 2.3 of WLEP including notably “to provide for the housing needs of the community within a low density residential environment” and “to provide for development that is compatible with the character and amenity of the surrounding neighbourhood”.

3. As required by cl 2.7 of WLEP consent is sought as part of the subject application for the proposed partial demolition.

4. The proposed development complies with the 9.5m maximum height of building development standard set out in cl 4.3 of WLEP having a maximum height of 8.990m as shown on the amended architectural plans.

5. No maximum floor space ratio development standard applies to the land pursuant to cl 4.4 of WLEP.

6. The site is located within the Woollahra Heritage Conservation Area in accordance with Sch 5 of WLEP. In accordance with cl 5.10, on the basis of the parties’ agreement, the amended plans and the agreement of the heritage experts, I am satisfied that consideration has been given to the effect of the proposed development on the heritage significance of the heritage conservation area.

7. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and, accordingly, no further assessment is required in accordance with cl 6.1 of WLEP.

8. Consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2(3) of WLEP. In this respect it is noted that a geotechnical and hydrogeological report (prepared by Crozier Geotechnical Consultants dated 27 June 2024) has been submitted with the Class 1 application which includes recommendations in respect of excavation and conditions of consent are proposed.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required. Standard conditions are to be applied in respect of unexpected finds.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The site is located within the Sydney Harbour Catchment in accordance with State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity; aquatic ecology, flooding, recreation and public access and total catchment management.

2. I am satisfied on the basis of the agreement of the parties that the stormwater plans for the proposal ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); and the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

State Environmental Planning Policy (Sustainable Buildings) 2022

1. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. The original application was accompanied by a BASIX certificate (Cert No. A1740952_02 dated 3 July 2024) prepared by Luigi Rosselli Pty Ltd as required by s 27 of the EPA Reg. An updated BASIX Certificate will be required as a condition of consent prior to the issue of a construction certificate (condition C.1.D).

Conclusion

7. 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)).

8. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

9. The orders of the Court are:

1. Leave is granted to rely on the amended plans and documents referred to in Annexure A.

2. The appeal is upheld.

3. Development Application No DA237/2024 for extensive alterations and additions to an existing terrace house (including new basement level, attic and spa) at 76 Moncur Street, Woollahra (Lot 34 Section A DP12), is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 February 2025