Lan v Woollahra Municipal Council

[2024] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lan v Woollahra Municipal Council [2024] NSWLEC 1194

Hearing dates:

Conciliation conference held on 12 April 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA533/22/1, as amended, seeking alterations and additions to an existing dwelling including a proposed secondary dwelling and associated basement garage under the existing rear tennis court and proposed lift at Lot 4A Deposited Plan 942202, also known as 42 Vaucluse Road, Vaucluse is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations to an existing dwelling - construction of a secondary dwelling above garage – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Div 2, ss 6.6, 6.7, 6.11

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Woollahra Local Environmental Plan 2014, cll 2.3, 5.4, 5.10, 6.2,

Texts Cited:

Woollahra Community Development Participation Plan 2023

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Junlin Lan (First Applicant)
Monica Hairu Yang (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
T Wood (Solicitor)(First and Second Applicants)
C Patterson (Solicitor)(Respondent)

Solicitors:
Maddocks (First and Second Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/244403

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA533/22/1 by Woollahra Municipal Council (the Council) seeking alterations and additions to an existing dwelling by demolition of an existing tennis court, excavation for a garage, reconstruction of the tennis court, landscaping and construction of a garage with a secondary dwelling above, and new stairs to the primary dwelling at Lot 4A Deposited Plan 942202, also known as 42 Vaucluse Road, Vaucluse (hereafter the site).

Background

2. Development Application DA 533/2022/1 (the DA) was lodged with Council on 30 November 2022, with three written submissions (from two adjoining properties) received during the notification period for the original DA.

3. After internal review, the DA was refused, with the determination made on 6 July 2023.

4. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing without an onsite view, before myself as Duty Commissioner.

6. The Council agreed for the applicant to amend the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

7. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the resident objectors have been considered in the merit assessment.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA533/22/1, subject to conditions in Annexure A.

Jurisdictional prerequisites

9. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been relevantly considered and are satisfied:

1. Woollahra Local Environmental Plan 2014 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone.

2. The amended DA is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the WLEP.

3. The proposed development complies with the requirements for total floor area of a secondary dwelling, pursuant to cl 5.4(9) of the WLEP.

4. The site has listed heritage items, Sydney Pink Gums, and specifically a Port Jackson tree (identified as Tree 8) located along the Carrera Road frontage, pursuant to cl 5.10 of the WLEP. The amended DA has sought to protect an extent of sandstone rock face and Tree 8, by a change to the driveway access and amended stormwater design. There are no assessed impacts to heritage listed items, and cl 5.10 is sufficiently addressed.

5. The proposed development seeks excavation for a garage, engaging cl 6.2 of the WLEP. The DA relies on a geotechnical report, prepared by White Geotechnical Group, dated 2 September 2022. The amended design reduces excavation for the garage, and any groundwater interaction during construction is addressed in the agreed conditions of consent, which address the requirements of cl 6.2.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX):

1. Pursuant to the requirements established in s 27 of the EPA Reg, a BASIX Certificate (A418506_02) issued on 13 October 2022 is relevant to the proposed development, as amended, and is prepared consistent with the requirements of the SEPP BASIX.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the catchment of Sydney Harbour, and subject to the requirements of Part 6.2, Division 2 of the SEPP Biodiversity. The parties agree that the DA relies on a stormwater management design, together with the agreed conditions of consent, that demonstrate stormwater can be discharged from the site to protect water quality, pursuant to ss 6.6, 6.7 and 6.11 of the SEPP Biodiversity.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

5. Woollahra Development Control Plan 2015 (WDCP):

1. The relevant requirements of the WDCP are generally complied with based on the amended plans, supporting documents to the DA and the conditions of consent.

2. The original application was publicly notified in accordance with the WDCP and the Woollahra Community Development Participation Plan 2023. The three submissions, from two adjoining properties, received during the notification period have been considered in Council’s merit assessment of the DA. The requirement for a construction plan in the conditions of consent, addresses safety and the protection of amenity during construction, and there is a reduction in excavation at the boundary to protect adjoining properties.

3. With regards to the loss of on-street parking raised in contention, it has been assessed as being reasonable due to the provision of additional parking on the site for the secondary dwelling and addresses the unsafe on-street parking in Carrera Street.

4. With regards to the Tree 8, after review of the amended DA, the experts agree that the proposed development, together with agreed conditions of consent sufficiently protect the tree.

5. The Council agrees that the contentions that relate to the WDCP are resolved by amendments to the DA and agreed conditions of consent. The proposed development is assessed as not causing unsatisfactory amenity impacts to adjoining properties or the streetscape.

10. Pursuant to s 23 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert report, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to making orders sought and that Development Application DA533/22/1, as amended, should be determined by the grant of consent.

13. As the parties' agreement 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.

14. The Court notes that:

1. The Woollahra Municipal Council, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, for the applicant to amend Development Application DA533/22/1, as follows:

Reference	Description	Author/Drawn	Dates
DA-A-100 Rev F	Garage	Smith & Tzannes	14/03/2024
DA-A-101 Rev F	Level C1	Smith & Tzannes	14/03/2024
DA-A-102 Rev D	Level 0 (Court)	Smith & Tzannes	14/03/2024
DA-A-103 Rev C	Level 1	Smith & Tzannes	14/03/2024
DA-A-200 Rev E	Sections	Smith & Tzannes	14/03/2024
DA-A-201 Rev C	Sections	Smith & Tzannes	14/03/2024
DA-A-202 Rev E	Elevations	Smith & Tzannes	14/03/2024
DA-A-203 Rev C	Lift South Elevation	Smith & Tzannes	14/03/2024
DA-A-900 Rev C	External Finishes	Smith & Tzannes	14/03/2024

2. The applicant has filed the amendments to the DA on 11 April 2024.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA533/22/1, as amended, seeking alterations and additions to an existing dwelling including a proposed secondary dwelling and associated basement garage under the existing rear tennis court and proposed lift at Lot 4A Deposited Plan 942202, also known as 42 Vaucluse Road, Vaucluse is determined by the grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 April 2024