Kent 3436 Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1578

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kent 3436 Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1578
Hearing dates:	Conciliation conference on 24 October 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1) Leave is granted for the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed and attached at Annexure A. (2) The appeal is upheld. (3) Development Application No. DA219/2018 which was lodged with the Respondent on 25 May 2018 and seeks consent for demolition of the existing two storey residence and the construction of a new residential flat building with basement car parking, swimming pools, landscaping and site works at 34 Kent Road Rose Bay as amended with the plans, drawings and material listed and attached at Annexure A, is approved subject to the conditions annexed to this agreement as Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Development State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Woollahra Local Environmental Plan 2014
Texts Cited:	Hornsby Development Control Plan 2013
Category:	Principal judgment
Parties:	Kent 3436 Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Whealy (Solicitor) (Applicant) S Simington (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers(Respondent)
File Number(s):	2019/48578
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Woollahra Municipal Council (Council) of Development Application No DA 219/2018. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lot 20, DP 979103 at 34 and 34A Kent Road Rose Bay (the site). The application, as originally submitted to Council on 25 May 2018, sought consent for demolition of an existing duplex and construction of a three storey residential flat building, two swimming pools and associated landscaping and site works. The residential flat building contains a total of four apartments over a single level basement with vehicular access via a car lift and parking for 12 cars.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I have presided over the conciliation conference, held on 24 October 2019. The conciliation conference commenced with a view on site and immediate surroundings, including from the parklands adjoining at the rear. At the site view oral submissions were made by representatives of the owners of the immediately adjoining properties at 32 and 36 Kent Road.

4. The original development application (DA) plans prepared by SJB architects (dated April 30 2018) and advertised between 6 June and 5 July 2018 were subsequently amended prior to the conciliation conference. Following the conciliation conference the parties reached an agreement based on the amended plans as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The main changes between the plans as originally submitted and the plans the subject of the s 34 agreement are an increase in the front boundary setback to 12.24m, an increase in the rear boundary setback to 9.98m, building levels amended and roof profile changed from a flat to pitched roof resulting in a building height compliant with the 10.5m LEP height of buildings development standard, reconfigured apartment layouts and the introduction of privacy screens to side boundary windows.

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. 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 jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [7] below.

Satisfaction of jurisdiction

7. The relevant jurisdictional matters are:

1. In relation to Woollahra Local Environmental Plan 2014 (WLEP 2014), I am satisfied that the development works are for the purpose of a residential flat building, which is a use permissible with consent in the applicable R3 Medium Density Residential zone and the development meets the objectives of that zone. I am also satisfied that the development complies with the relevant development standards for minimum lot size, maximum floor space ratio and maximum building height.

2. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate, number 929977M_03 and dated 24 October 2019, has been provided, confirming the requirements of this SEPP have been satisfied.

3. In relation to State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation. A Stage 2 Environmental Site Assessment report dated 8 August 2018 was submitted as part of the DA documentation filed with the Class 1 application to the Court. The conditions of consent that accompany the agreement between the parties include conditions consistent with the recommendations of that report and I am therefore satisfied that the requirements of SEPP 55 have been satisfied.

4. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Development (SEPP 65) and the associated Apartment Design Guidelines (ADG), I note an updated Design Verification Statement prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulations 2000 and dated 24 October 2019 has been submitted, and I am satisfied the development reasonably satisfies the aims and relevant provisions of SEPP 65 and the ADG.

Disposal of proceedings in accordance with the parties’ decision:

8. 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’ agreement.

9. The Court orders:

1. Leave is granted for the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed and attached at Annexure A.

2. The appeal is upheld.

3. Development Application No. DA219/2018 which was lodged with the Respondent on 25 May 2018 and seeks consent for demolition of the existing two storey residence and the construction of a new residential flat building with basement car parking, swimming pools, landscaping and site works at 34 Kent Road Rose Bay as amended with the plans, drawings and material listed and attached at Annexure A, is approved subject to the conditions annexed to this agreement as Annexure B.

…………………………

J Bindon

Acting Commissioner of the Court

(Please note Annexure A (Amended Plans) cannot be uploaded due to technical issues)

Annexure B (1.54 MB)

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Decision last updated: 28 November 2019