Keith v Woollahra Municipal Council

[2024] NSWLEC 1571

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Keith v Woollahra Municipal Council [2024] NSWLEC 1571

Hearing dates:

Conciliation conference on 11 September 2024

Date of orders:

11 September 2024

Decision date:

11 September 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent the agreed gross fixed sum amount of $13,500:

(a) for those costs of the respondent thrown away as a result of the amendment of the application for development consent in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979; and

(b) in satisfaction of Order 2 of the orders made by the Court on 30 May 2024 (and as repeated in Order 5 of the amended notice of motion granted 30 May 2024).

(2) The applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 (LEP) seeking a contravention of the development standard for height of buildings set out in clause 4.3(2) of the LEP is upheld.

(3) The applicant’s written request under clause 4.6 of the LEP seeking a contravention of the development standard for floor space ratio set out in clause 4.4(2) of the LEP is upheld.

(4) The appeal is upheld.

(5) Development application DA287/2023 for alterations and additions to the approved residential flat building at 3 Wiston Gardens, Double Bay is determined by the grant of development consent, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application - alterations and additions to an approved residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 2.22, 4.14, 4.15, 8.15(3); Sch 1 Pt 1

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 55

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

Standard Instrument (Local Environmental Plans) Order 2006, cl 8(1)

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9; Pt 6.3

State Environmental Planning Policy (Housing) 2021, Ch 4; s 147; Sch 7A, s 8(2A); Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.3, 2.4; s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.199

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 5.23, 6.1, 6.2; Sch 5 Pts 1, 2

Texts Cited:

Apartment Design Guide

Department of Planning Circular PS 20–002 ‘Variations to development standards’ (5 May 2020)

Category:

Principal judgment

Parties:

John Keith (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/423260

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the refusal by Woollahra Municipal Council (the Council) of development application no. DA287/2023 (DA) for alterations and additions to an approved residential flat building at 3 Wiston Gardens, Double Bay (the site).

2. The matter was listed for a three-day hearing, commencing on 11 September 2024. However prior to the start of the hearing the parties had reached an agreement and sought an adjournment to allow the matter to be reallocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

3. The conciliation took place before me on 11 September 2024 and during that process, the Council approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the applicant amending the DA to address the contentions and matters raised in the Council’s Amended Statement of Facts and Contentions (ASOFC) and Joint Expert Report of the Town Planners and Urban Designers. The documents comprising the amended DA are set out below and were filed with the Court on 2 September 2024:

1. Architectural drawings prepared by Tzannes in replacement of corresponding earlier drawings as follows:

Drawing No.	Rev.	Title	Date
4.0000	F	Cover Sheet & BASIX	28 August 2024
4.0001	G	Site and Roof Plan	28 August 2024
4.0002	G	Site Analysis	28 August 2024
4.0100	G	Notification Plan	28 August 2024
4.0101	G	Notification Elevations – East & North	28 August 2024
4.0102	F	Notification Elevations – South & West	28 August 2024
4.0500	E	Demolition Plan	2 June 2024
4.0501	F	Demolition Excavation Sections	2 June 2024
4.0600	G	Basement and Ground Level Deletion Plans	19 April 2024
4.0601	F	Level 1 and Level 2 Deletion Plans	19 April 2024
4.0602	G	Level 3 and Level 4 Deletion Plans	28 August 2024
4.0603	G	Roof Terrace and Roof Deletion Plans	28 August 2024
4.1000	G	Basement and Ground Level Amended Plans	19 April 2024
4.1001	F	Level 1 and Level 2 Amended Plans	19 April 2024
4.1002	G	Level 3 and Level 4 Amended Plans	19 August 2024
4.1003	G	Roof Terrace and Roof Amended Plans	19 August 2024
4.2000	H	Elevations – East & West	28 August 2024
4.2001	G	Elevation – North	28 August 2024
4.2002	F	Elevation – South	28 August 2024
4.3000	F	Section 1	28 August 2024
4.3001	E	Section 2	19 April 2024
4.8000	G	View from No. 5A Front Balcony	28 August 2024
4.8001	G	View from No. 5A Front Terrace	28 August 2024
4.8002	G	View from No. 5A Side Window	28 August 2024
4.8003	G	View from No. 5A Pool Deck	28 August 2024
4.8004	G	View from No. 17 Eastbourne Road Lower Ground Floor Window	28 August 2024
4.8005	G	View from No. 17 Eastbourne Road Second Floor Terrace	28 August 2024
4.8006	G	View from No. 19 Eastbourne Road Ground Floor Window	28 August 2024
4.8007	G	View from No. 19A Eastbourne Road Pool Deck	28 August 2024
4.8008	G	Additional Views – from Street and 5A Pool, Cabana, Rear Terrace	28 August 2024
4.8101	F	Plan Shadow Diagrams Proposed – Winter Solstice	19 August 2024
4.8111	F	Elevational Shadow Diagrams Proposed – 5A Wiston Gardens North-East – Winter Solstice	19 August 2024
4.8115	F	Plan Shadow Diagrams – 5A Pool – DA2 Mid winter (9-10am)	28 August 2024
4.8116	F	Plan Shadow Diagrams – 5A Pool – Mid Summer	28 August 2024
4.8117	F	Plan Shadow Diagrams – 5A Pool –Spring Equinox	28 August 2024
4.8200	I	Area plans	28 August 2024
4.8201	F	Building Envelope Diagrams – Proposed & Existing	28 August 2024
4.8202	G	Private Open Space Diagrams	28 August 2024
4.8204	G	Bedroom Amenity Analysis	28 August 2024
4.8300	G	Neighbour View Catchment Analysis	28 August 2024
4.8301	G	Neighbour View Catchment Analysis	28 August 2024
4.8302	C	Neighbour View Catchment Analysis	19 April 2024
4.8303	D	Neighbour View Catchment Analysis	19 April 2024
4.9000	D	Photomontage – View 01	19 April 2024
4.9001	D	Photomontage – View 02	19 April 2024

2. Schedule of architectural amendments prepared by Tzannes; dated 28 August 2024;

3. Letter re ‘No Requirement for Acid Sulfate Soil Management Plan’ prepared by Consara dated 27 June 2024;

4. Letter re ‘Geotechnical Assessment of the Effects of the Development on the Groundwater Table’ prepared by Douglas Partners dated 27 June 2024;

5. Letter re ‘Geotechnical Review of Alterations’ prepared by Douglas Partners dated 7 June 2024;

6. Letter re ‘Stormwater Management and Water-Sensitive Urban Design’ prepared by IGS dated 26 June 2024;

7. Letter re ‘Floodplain Management’ prepared by IGS dated 27 June 2024.

8. Design verification statement titled ‘Housing SEPP Design Statement’ prepared by Tzannes dated September 2024 in replacement of the earlier corresponding document;

9. Amended clause 4.6 variation request (floor space ratio) prepared by Gyde dated September 2024 in replacement of the earlier corresponding clause 4.6 request;

10. Amended clause 4.6 variation request (height of buildings) prepared by Gyde dated September 2024 in replacement of the earlier corresponding clause 4.6 request; and

11. Amended BASIX certificate in replacement of the earlier corresponding BASIX certificate.

4. Having resolved the contentions raised, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

5. Based on the evidence and the submissions of the parties in respect to my jurisdiction, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. The preconditions of relevance are addressed in a summary form below:

Owner’s consent

7. Owner’s consent has been obtained from each of the owners of the land as required by s 23 of the EPA Regulation. This document is at Tab 3 of the Class 1 application.

Woollahra Local Environmental Plan 2014 (LEP)

Clause 2.2 Zoning of land to which Plan applies and Land Use Table

8. A Statement of Environmental Effects has been prepared by Gyde. This document is dated August 2023 and is located at Tab 6 of the Class 1 application (the SEE).

9. The land is zoned R3 Medium Density Residential on the LEP and zoning map.

10. The proposed use ‘residential flat building’ is permitted with consent within the R3 Medium Density Residential zone (under cl 2.3(1)(c) of the LEP and the Land Use Table). This is confirmed on p 25 of the SEE.

Clause 4.3 Height of buildings

11. The proposed development exceeds the maximum height of buildings standard of 10.5m imposed by cl 4.3(2) of the LEP.

12. The applicant relies on a written request under cl 4.6 of the LEP to vary the development standard for the height of buildings (as would otherwise apply under cl 4.3(2) of the LEP). This request is titled ‘Clause 4.6 Variation Request Clause 4.3 Height of Buildings’ and is dated September 2024. It has been prepared by Gyde (the clause 4.6 request for height) and is included in the amended application documents.

13. Clause 4.6 was amended by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023 on 1 November 2023. However, the subject development application was lodged before this date, so (in accordance with cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006) the former terms of cl 4.6 still apply.

14. The clause 4.6 request for height adequately demonstrates that:

• compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

• there are sufficient environmental planning grounds to justify contravening the development standard.

15. The proposed development is in the public interest because it is consistent with the objectives of the development standard and the zone objectives.

16. The Secretary of Department of Planning and Environment is assumed to have concurred to the variation. This is because of Department of Planning Circular PS 20–002 ‘Variations to development standards’, dated 5 May 2020. This circular is a notice under s 55(1) of the EPA Regulation.

17. A consent granted by a consent authority that has assumed concurrence is as valid and effective as if concurrence had been given.

Clause 4.4 Floor space ratio (FSR)

18. The proposed development exceeds the maximum FSR of 0.65:1 imposed by cl 4.4(2) of the LEP. The applicant relies on a written request under cl 4.6 of the LEP to vary the development standard for the FSR (as would otherwise apply under cl 4.4(2) of the LEP). This request is titled ‘Clause 4.6 Variation Request Clause 4.4 Floor Space Ratio’ and is dated September 2024. It has been prepared by Gyde (the clause 4.6 request for FSR) and is included with the amended application documents.

19. Clause 4.6 was amended by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023 on 1 November 2023. However, the subject development application was lodged before this date, so (in accordance with cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006) the former terms of cl 4.6 still apply.

20. The clause 4.6 request for FSR adequately demonstrates that:

• compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

• there are sufficient environmental planning grounds to justify contravening the development standard.

21. The proposed development is in the public interest because it is consistent with the objectives of the development standard and the zone objectives.

22. The Secretary of Department of Planning and Environment is assumed to have concurred to the variation. This is because of Department of Planning Circular PS 20–002 ‘Variations to development standards’, dated 5 May 2020. This circular is a notice under s 55(1) of the EPA Regulation.

23. A consent granted by a consent authority that has assumed concurrence is as valid and effective as if concurrence had been given.

Clause 5.10(4) Heritage conservation

24. The site is not:

• listed as a heritage item under Pt 1 of Sch 5 of the LEP; nor

• in a heritage conservation area under Pt 2 of Sch 5 of the LEP.

25. Accordingly, this clause does not apply.

Clause 5.21(2) Flood planning

26. The proposed development:

• is compatible with the flood function and behaviour on the land;

• will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

• will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

• incorporates appropriate measures to manage risk to life in the event of a flood; and

• will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

27. This is confirmed in the ‘Flood Statement Letter’ prepared by IGS dated 27 June 2024 (at Tab 9 of Exhibit AK-2, folios 71-73).

Clause 5.23 Public bushland

28. The proposed development will not disturb and is not reasonably likely to disturb public bushland. Accordingly, cl 5.23(3)-(4) does not apply.

Cause 6.1(3) Acid sulfate soils

29. The site is identified as ‘Class 5’ and ‘Class 2’ on the ‘Acid Sulfate Soils Map’.

30. Development consent must not be granted under cl 6.1 unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

31. An ‘acid sulfate soils management plan’ prepared by Consara dated 16 June 2021 was provided to, and endorsed by, the consent authority under development consent DA325/2020.

32. The letter titled ‘No requirement for an acid sulfate soil management plan’ prepared by Consara dated 27 June 2024 (at Tab 5 of Exhibit AK-2, folios 58-61) confirms that the proposed development does not necessitate the preparation of a further acid sulfate soils management plan.

Clause 6.2(3) Earthworks

33. Section 6.2 requires the consent authority to consider the effect of earthworks.

34. Before granting development consent for earthworks, the consent authority must consider the matters listed in cl 6.2(3) of the LEP.

35. In relation to the matters listed in cl 6.2(3) of the LEP, the proposed development:

• will not have any detrimental effects on drainage or soil stability;

• will not affect the likely future use or redevelopment of the land;

• the soil to be excavated is natural rock (VENM);

• the excavation will not affect the likely amenity and structural integrity of the surrounding properties;

• the excavated material will be taken to a registered tip or approved reuse facility by the excavation contractor;

• the excavations are within bedrock, below the natural rock surface, and therefore there is negligible change in relation to disturbing relics;

• the excavation is well away from waterways and not located near any drinking catchments, so will have no adverse impacts on them; and

• there are no measures required to minimise the effects of the excavation other than normal safe working practices and that already advised for the existing development work.

36. The above matters are confirmed in the letter titled ‘Geotechnical review of alterations’ prepared by Douglas Partners dated 7 June 2024 (at Tab 7 of Exhibit AK-2, folios 65-68).

37. There are no matters arising from cl 6.2(3) that would prevent the grant of development consent.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

Chapter 2 Coastal management

38. The site is not on land within the ‘coastal zone’ within the definition of s 2.4.

39. Accordingly, this Chapter does not apply (in accordance with s 2.3).

Section 4.6 Contamination and remediation to be considered in determining development application

40. A remediation action plan prepared by Consara dated 14 April 2021 was approved under condition A.4 of development consent DA325/2020.

41. The land requires remediation and will be suitable for the purpose for which the development is proposed to be carried out once remediation has been undertaken as required by the conditions of the existing development consent ‘DA325/2020’.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

Chapter 6 Water catchments

42. The site is within the Sydney Harbour Catchment. Therefore, Pt 6.2 of the BC SEPP applies to the site.

43. The site is not within the Foreshores or Waterways Area. Therefore, Pt 6.3 of the BC SEPP does not apply to the site.

Section 6.6(2) Water quality and quantity

44. The proposed development ensures that:

• the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

• the impact on water flow in a natural waterbody will be minimised.

45. This is confirmed in the letter titled ‘Stormwater statement letter’ prepared by IGS dated 26 June 2024 (at Tab 8 of Exhibit AK-2, folios 69-70).

Section 6.7(2) Aquatic ecology

46. The direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development.

47. The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves.

48. The clearing of riparian vegetation is not proposed.

49. The development will not cause any erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody.

50. The adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

51. Relevant to this are:

• the amended architectural drawings prepared by Tzannes (at Tab 1 of Exhibit AK-2, folios 1-45);

• the letter titled ‘Stormwater statement letter’ prepared by IGS dated 26 June 2024 (at Tab 8 of Exhibit AK-2, folios 69-70);

• the letter titled ‘Flood Statement’ prepared by IGS dated 27 June 2024 (at Tab 9 of Exhibit AK-2, folios 71-101).

Section 6.8(2) Flooding

52. The proposed development will not:

• if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or

• have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

53. This is confirmed in the letter titled ‘Flood Statement’ prepared by IGS dated 27 June 2024 (at Tab 9 of Exhibit AK-2, folios 71-73).

Section 6.9(2) Recreation and public access

54. The proposed development will maintain public access to and from natural waterbodies for recreational purposes, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation (see drawing 4.0001 of the amended architectural drawings prepared by Tzannes (Tab 1 of Exhibit AK-2, folio 2) and the letter titled ‘Stormwater statement letter’ prepared by IGS dated 26 June 2024 (at Tab 8 of Exhibit AK-2, folios 69-70).

55. Existing points of public access between natural waterbodies and the site of the development will be stable and safe (this access way is Wiston Gardens and Marine Parade which are, and will continue to be, safe and stable).

56. Land forming part of the foreshore of a natural waterbody will not be made available for public access as a result of the proposed development (see drawing 4.0001 of the amended architectural drawings prepared by Tzannes (Tab 1 of Exhibit AK-2, folio 2).

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

Section 2.119 Development with frontage to classified road

57. The proposed development does not have a frontage to a classified road. Accordingly, this section does not apply.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

58. A ‘design statement’ has been prepared by a qualified designer. This document is dated September 2024 and appears at Tab 10 of Exhibit AK-2, folios 102-153 (the design statement).

59. The development application is subject to Ch 4 ‘Design of residential apartment development’ of the Housing SEPP.

60. This Chapter of the Housing SEPP applies to the subject development application, despite the fact that the development application was made prior to 14 December 2023 (as per s 8(2A) of the Sch 7A of the Housing SEPP).

61. Section 147 of the Housing SEPP requires a consent authority to take into consideration specified matters, namely:

• the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9;

• the Apartment Design Guide; and

• any advice received from a design review panel within 14 days after the consent authority referred the development application to the panel.

62. The design statement provides sufficient information for the consent authority to consider the matters set out in [61] above. No advice has been received from a design review panel under [61] above.

EPA Regulation

Section 27 BASIX development

63. BASIX certificate no. 1115315M_20 was issued on 9 September 2024. This document is included with the amended application documents.

Section 29 Residential apartment development

64. The design statement:

1. verifies that the qualified designer directed the design of the development; and

2. explains how the development addresses:

1. the design principles for residential apartment development, and

2. the objectives in Parts 3 and 4 of the Apartment Design Guide.

EPA Act

65. The development application was notified between 6 September 2023 and 21 September 2023 in accordance with s 2.22 and Pt 1 of Sch 1 of the EPA Act. Four submissions were received in relation to the proposed development. This is confirmed on p 6 of the ASOFC filed 2 July 2024.

Notations and Orders

66. The Court notes that:

• the agreed gross fixed sum amount of $13,500 in Order 1 below includes an offset for the costs payable by the respondent to the applicant under Order 4 of the short minutes of order made on 29 January 2024; and

• the applicant has waived his right to separately seek costs from the respondent under Order 4 of the short minutes of order made on 29 January 2024.

67. Accordingly, the Court orders:

1. The applicant is to pay the respondent the agreed gross fixed sum amount of $13,500:

1. for those costs of the respondent thrown away as a result of the amendment of the application for development consent in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979; and

2. in satisfaction of Order 2 of the orders made by the Court on 30 May 2024 (and as repeated in Order 5 of the amended notice of motion granted 30 May 2024).

2. The applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 (LEP) seeking a contravention of the development standard for height of buildings set out in clause 4.3(2) of the LEP is upheld.

3. The applicant’s written request under clause 4.6 of the LEP seeking a contravention of the development standard for floor space ratio set out in clause 4.4(2) of the LEP is upheld.

4. The appeal is upheld.

5. Development application DA287/2023 for alterations and additions to the approved residential flat building at 3 Wiston Gardens, Double Bay is determined by the grant of development consent, subject to the conditions set out in Annexure A.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A (256902, pdf)

**********

Amendments

17 September 2024 - Correction to typographical error at [3].

Decision last updated: 17 September 2024