Kew Bellevue Hill Pty Ltd v Woollahra Municipal Council
[2024] NSWLEC 1627
•08 October 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: Kew Bellevue Hill Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1627 Hearing dates: Conciliation conference on 14 August 2024 Date of orders: 8 October 2024 Decision date: 08 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent DA2022/335/1 granted by the Land and Environment Court on 8 August 2023 is modified in the terms in Annexure A to this agreement.
(3) The terms of the consolidated development consent, as modified by the Court, are set out in Annexure B to this agreement.
Catchwords: MODIFICATION APPLICATION – conciliation conference – residential apartment building – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113
State Environmental Planning Policy (Housing) 2021, s 147
Woollahra Local Environmental Plan 2014, cll 4.3, 5.21, 6.1, 6.2
Category: Principal judgment Parties: Kew Bellevue Hill Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Solicitors:
A Gadiel (Solicitor)(Applicant)
S Patterson (Solicitor)(Respondent)
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2024/41614 Publication restriction: Nil
Judgment
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COMMISSIONER: These Class 1 proceedings arise from a modification application, made by Kew Bellevue Hill Pty Ltd, directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act1979 (EPA Act). The application requests to modify development consent DA335/2022/1 which was approved by the Court on 10 August 2023, for the demolition of existing structures and construction of two new residential flat buildings containing a total of 16 units at 84, 86 and 88 Birriga Road, Bellevue Hill, legally known as Lot 1 in DP34743, Lot 1 in DP105443 and Lot 88 in DP1039955.
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The application proposes:
Internal and external reconfiguration of both buildings, including: reconfigured elevations; amendments to internal layouts; balconies and roof terraces, and; amendments to materiality and finishes.
Addition of a swimming pool adjacent to the eastern boundary.
Amendment of the landscape design.
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 August 2023. I presided over the conciliation conference.
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After the conciliation conference, on 12 September 2024, 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 modifying the consent in accordance with the modification application.
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Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points:
The modification application was made with the written consent of the owner of the subject site.
Pursuant to s 4.56(1)(a) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note:
The development retains the number of buildings, dwellings, levels, storeys and car spaces. The height of the buildings remains unchanged, as does the volume of excavation. The building type and use is maintained.
The modification facilitates additional bedrooms for the rear building, an increase in the approved Gross Floor Area (GFA), and refined external elevations. These modifications are minor in terms of the development as a whole, and have acceptable environmental planning impacts as per the parties’ submissions and the letter from GSA Planning dated 21 August 2024 (tab 10 amended application).
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From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted.
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In accordance with the requirements of s 4.56(1)(b), (c) and (d), the modification application was notified from 6 March to 25 March 2024 in accordance with the Woollahra Community Participation Plan. Ten submissions were received, and five residents gave oral submissions at the commencement of these proceedings. The parties submit, and I accept that issues raised in these submissions have been adequately considered in the assessment of this application and in the amendments made as part of this conciliation process.
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Having regard to the Woollahra Local Environmental Plan 2014 (WLEP), the parties submit, and I accept that the amendments do not result in any exceedance of the permissible height control (cl 4.3), do not result in any works that impact Acid Sulfate Soils (cl 6.1), do not impact the approved earthworks (cl 6.2) nor impact flood planning (cl 5.21). Further, the site is zoned R3 Medium Density Residential within which development for the purposes of residential flat buildings is permissible with consent. The parties submit, and I accept that the proposed development as modified meets the objectives of the zone.
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Pursuant to s 100 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the application contains the information required under s 100(1), and a BASIX certificate as required under s 100(3).
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The application contains a statement by a qualified designer that addresses the matters listed in s 102 of the EPA Regulation.
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Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the development. Pursuant to s 147 of the Housing SEPP, a ‘Design Verification Statement’ by Jason Fraser of Woods Bagot, and a ‘SEPP 65 Design Principles for Residential Apartment Development & Apartment Design Guide Compliance Checklist’ by Woods Bagot, both dated 18 January 2024, have been submitted with the modification application. From these documents and the parties’ submission, I accept that the development has been considered against the design quality principles set out in Sch 9 of the Housing SEPP and the Apartment Design Guide. No advice was received from a design review panel.
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Finally, based on the information contained in the Statement of Environmental Effects, the amended plans, and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as relevant to the development the subject of this application have been considered, as required by EPA Act s 4.55(2), and that all jurisdictional prerequisites have been met.
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For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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The Court notes:
That Woollahra Municipal Council as the relevant consent authority has agreed, under cl 113 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of Development Consent DA2022/335/1 granted by the Court on 8 August 2023 in the following respects:
the inclusion of architectural drawings prepared by Woods Bagot in replacement of corresponding earlier drawings as follows:
Drawing No.
Rev.
Title
Date
DA 0000
L
Cover Sheet
21 August 2024
DA 1003
L
Site & Roof Plan
21 August 2024
DA 1004
L
Demolition/Tree Removal Plan
21 August 2024
DA 1005
K
Setbacks Diagram
21 August 2024
DA 1006
K
Public Domain Diagram
21 August 2024
DA 1007
C
Sydney Water Access Plan
21 August 2024
DA 1008
C
Communal Open Terrace
21 August 2024
DA 2000
K
Basement 03 Key Plan
21 August 2024
DA 2001
K
Basement 02/B – Lower Ground Floor – Key Plan
21 August 2024
DA 2002
K
Basement 01/B – Ground Floor – Key Plan
21 August 2024
DA 2003
K
A Lower Ground / B – Level 01 Floor - Key Plan
21 August 2024
DA 2004
L
A Lower Ground 01/B – Level 02 Floor – Key Plan
21 August 2024
DA 2005
L
A Ground Floor Plan/B – Roof – Key Plan
21 August 2024
DA 2006
L
A Level 01 Floor – Key Plan
21 August 2024
DA 2007
L
A Level 02 Penthouse Floor – Key Plan
21 August 2024
DA 2008
L
Roof – Key Plan
21 August 2024
DA 2100
L
Basement 03 – Plan
21 August 2024
DA 2101
L
Basement 02/B – Lower Ground – Plan
21 August 2024
DA 2102
L
Basement 01/B – Ground Floor – Plan
21 August 2024
DA 2103
L
A Lower Ground /B – Level 01 Floor – Plan
21 August 2024
DA 2104
L
A Lower Ground 01/B – Level 02 Floor – Plan
21 August 2024
DA 2105
L
A Ground Floor Plan/B - Roof - Plan
21 August 2024
DA 2106
L
A Level 01 Floor - Plan
21 August 2024
DA 2107
L
A Level 02 Penthouse Floor - Plan
21 August 2024
DA 2108
L
Roof - Plan
21 August 2024
DA 3000
L
Building A - Elevation South
21 August 2024
DA 3001
K
Building A - Elevation North
21 August 2024
DA 3002
K
Building A - Elevation East
21 August 2024
DA 3003
L
Building A - Elevation West
21 August 2024
DA 3004
K
Building B - Elevation North
21 August 2024
DA 3005
K
Building B - Elevation East
21 August 2024
DA 3006
K
Building B - Elevation West
21 August 2024
DA 3100
K
Site Section – Building A & B
21 August 2024
DA 3101
L
Building A - Short Section
21 August 2024
DA 3102
K
Building B - Long Section
21 August 2024
DA 3103
K
Building B - Short Section
21 August 2024
DA 3104
K
Building B - Boundary Sections
21 August 2024
DA 6000
K
External Finishes & Materials
21 August 2024
DA 7000
K
Adaptable Layouts
21 August 2024
DA 9004
K
Waste Management Plan
21 August 2024
DA 9005
K
Excavation Diagrams 01
21 August 2024
DA 9006
K
Excavation Diagrams 02
21 August 2024
DA 9007
K
Excavation Diagrams – Parking Breakdown
21 August 2024
DA 9100.5
C
Solar Access 11am-12pm – June 21
21 August 2024
DA 9100
C
Solar Access 9am-10am – June 21
21 August 2024
DA 9101
C
Solar Access 1pm-3pm – June 21
21 August 2024
DA 9200
K
Notification Plan 01
21 August 2024
DA 9201
L
Notification Plan 02
21 August 2024
SK01A
L
Boundary Stair Elevation
21 August 2024
SK01B
L
Boundary Fence Details
21 August 2024
SK 04E
K
Egress Path Sections
21 August 2024
SK 04F
C
Boundary Study Section
21 August 2024
SK 04I
C
Boundary Study 3D
21 August 2024
SK-03
K
Building B Ground Floor Plan - Egress Path Detail
21 August 2024
SK-04D
K
Egress Path Plan and Section
21 August 2024
the inclusion of the schedule of amendments prepared by Woods Bagot dated 21 August 2024;
the inclusion of landscape drawings prepared by Dangar Barin Smith in replacement of corresponding earlier drawings as follows:
Drawing No.
Rev.
Title
Date
LP01-D5823
I
Cover Page
22 August 2024
LP02-D5823
I
Front Entry Landscape Plan – Building A
22 August 2024
LP03-D5823
I
Rear and Central Landscapes – Building A Basement 1 & Building B Ground Floor
22 August 2024
LP04-D5823
I
Roof Garden Landscape Plan – Building B
22 August 2024
LP05-D5823
I
Eastern & Western Landscapes Elevations – Building A
22 August 2024
the inclusion of the town planning letter prepared by GSA Planning dated 21 August 2024; and
the inclusion of the revised BASIX certificate 1326574M_05 dated 23 August 2024 in replacement of the earlier BASIX certificate,
the inclusion of the arboricultural impact assessment and management plan prepared by George Palmer dated January 2024;
the inclusion of the letter titled ’88 Birriga Road, Bellevue Hill, NSW – Stormwater Plan’ prepared by WMS dated 30 April 2024;
the inclusion of the amended civil engineering drawings prepared by Stantec in replacement of corresponding earlier drawings as follows:
Drawing No.
Rev.
Title
Date
STN-ZZ-000-DR-CI-007001
B
General Notes Sheets 1 of 3
23 July 2024
STN-ZZ-000-DR-CI- 007002
B
General Notes Sheets 2 of 3
23 July 2024
STN-ZZ-000-DR-CI-007003
B
General Notes Sheets 3 of 3
23 July 2024
STN-ZZ-000-DR-CI-050001
B
Existing Conditions Plan
23 July 2024
STN-ZZ-000-DR-CI-055001
B
Demolition Plan
23 July 2024
STN-ZZ-000-DR-CI-060001
B
General Arrangement Plan
23 July 2024
STN-ZZ-000-DR-CI-066001
B
Roads and General Details Sheet 1 of 2
23 July 2024
STN-ZZ-000-DR-CI-066002
B
Roads and General Details Sheet 2 of 2
23 July 2024
STN-ZZ-000-DR-CI-07001
B
Erosion and Sediment Control Plan
23 July 2024
STN-ZZ-000-DR-CI-076001
B
Erosion and Sediment Control Details
23 July 2024
STN-ZZ-000-DR-CI-100001
C
Bulk Earthworks Plan
23 July 2024
STN-ZZ-000-DR-CI-103001
B
Bulk Earthworks Section
23 July 2024
STN-ZZ-000-DR-CI-440001
B
Public Domain Works
23 July 2024
STN-ZZ-000-DR-CI-500001
B
WSUD Catchment Plan
23 July 2024
STN-ZZ-000-DR-CI-510001
A
Stormwater Catchment Plan
18 July 2024
STN-ZZ-000-DR-CI-526001
B
Stormwater Drainage Details Sheet 1 of 5
23 July 2024
STN-ZZ-000-DR-CI-526002
B
Stormwater Drainage Details Sheet 2 of 5
23 July 2024
STN-ZZ-000-DR-CI-526003
B
Stormwater Drainage Details Sheet 3 of 5
23 July 2024
STN-ZZ-000-DR-CI-526004
B
Stormwater Drainage Details Sheet 4 of 5
23 July 2024
STN-ZZ-000-DR-CI-526005
B
Stormwater Drainage Details Sheet 5 of 5
23 July 2024
STN-ZZ-000-DR-CI-520001
B
Stormwater Drainage Plan
23 July 2024
the inclusion of the visual impact assessment prepared by AE Design Partnership Pty Ltd dated 22 April 2024;
the inclusion of the photomontages document prepared by AE Design Partnership Pty Ltd dated April 2024;
the inclusion of the photomontages document prepared by AE Design Partnership Pty Ltd dated June 2024.
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The Court orders:
The appeal is upheld.
Development consent DA2022/335/1 granted by the Land and Environment Court on 8 August 2023 is modified in the terms in Annexure A to this agreement.
The terms of the consolidated development consent, as modified by the Court, are set out in Annexure B to this agreement.
E Washington
Acting Commissioner of the Court
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Annexure A
Annexure B
Decision last updated: 08 October 2024
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