Landerer v Council of the Municipality of Woollahra

[2024] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:

Landerer v Council of the Municipality of Woollahra [2024] NSWLEC 1172

Hearing dates:

Conciliation conference on 14 March 2024

Date of orders:

11 April 2024

Decision date:

11 April 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

1) The written request made pursuant to cl 4.6 of the Woollahra Local Environment Plan 2014 (WLEP) to vary the height of buildings standard pursuant to cl 4.3 of the WLEP, prepared by GSA Planning dated March 2024, is upheld.

2) The appeal is upheld.

3) Development Application 591/2022, as amended, for the demolition of the existing dwelling house and construction of a new dwelling, rear tandem garage with upper floor gym, swimming pool and landscaping works at 7 Pacific Street, Watsons Bay is determined by the grant of development consent subject to the conditions at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – Heritage Conservation Area – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

National Parks and Wildlife Act 1979, s 90

Environmental Planning and Assessment Regulation 2021, ss 38

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

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

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Woollahra Local Environmental Plan 2014, cll 4.3, 4.6, 5.10, 5.21, 6.1, 6.2

Texts Cited:

Woollahra Community Participation Plan

Category:

Principal judgment

Parties:

Leslie Landerer (Applicant)
Council of the Municipality of Woollhara (Respondent)

Representation:

Counsel:
A Galasso (Applicant)
P Rigg (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2023/296857

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by the Council of the Municipality of Woollahra (the Respondent) of Development Application DA591/2022, which seeks consent for the demolition of the existing dwelling and construction of a new part-two and part-three storey dwelling, a separate two-storey building to the rear, a swimming pool and landscaping works at 7 Pacific Street, Watsons Bay, Lot 1 of DP 546648.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 March 2024. I presided over the conciliation conference.

4. At the conciliation conference, 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.

5. 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 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

7. The application was notified in accordance with the Woollahra Community Participation Plan. A total of 16 written submissions were made, and 4 oral submissions were made at the commencement of these proceedings. The parties submit, and I accept, that the issues raised in these submissions have been adequately considered, and where relevant, incorporated into the amended application that is now before the Court.

8. The development application was made with the written consent of the landowner for the subject site, Leslie Landerer, who is the applicant in these proceedings.

9. Pursuant to the Woollahra Local Environmental Plan 2014 (WLEP), the subject site is zoned R2 Low Density Residential, within which development for the purpose of dwelling houses is permitted with consent. The proposed development is consistent with the objectives of this zone.

10. WLEP cl 4.3 establishes a maximum building height control of 8.2m to the subject site, which the proposed dwelling exceeds with a maximum height of 9.695m. This exceeds the development standard by 1.495m, or 18.2%. This variation is limited to the roof structure of the southern wing.

11. Subsequently, cl 4.6(3) of the WLEP requires a written request to justify the contravention of the height of building development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the Applicant has submitted a written request prepared by GSA Planning, dated 14 March 2024 (the written request). Pursuant to WLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the height of buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the Height of Buildings standard:

1. is the result of the sloping topography of the site, which slopes from south to north.

2. will not result in any incompatibility with the surrounding built form and context, as it will still present as a two-storey building to the street.

3. is minor in nature in both qualitative and quantitative terms and does not result in any unreasonable impacts on the amenity of neighbouring properties.

3. The contravention is therefore justified by being a function of the existing topography of the site, the compatibility with surrounding built form and the urban context, the lack of adverse impact on neighbouring residents, and by the breach of the standard being minor in nature.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

12. As this is within the R2 Zone in the Watsons Bay Conservation Area, no floor space ratio control applies to the subject site.

13. WLEP cl 5.10 – Heritage Conservation applies to the subject site as it is located within the Watsons Bay Heritage Conservation Area (HCA). Accordingly, a Heritage Impact Statement was prepared by Zoltan Covacs Architects, dated November 2022, and correspondence regarding heritage matters was included within the Class 1 Application filed with the Court.

14. Additionally, due to its coastal location, the site is identified to be within an area that is identified as an ‘Aboriginal place of heritage significance’. Accordingly, an Aboriginal Heritage Impact Assessment was prepared by Coast History & Heritage, dated 8 November 2022, which makes a number of recommendations to prevent any adverse effects to any Aboriginal objects that might be present during the construction of the proposed development. This assessment concludes that archaeological test excavations should be undertaken under an Aboriginal Heritage Impact Permit as a condition of consent, pursuant to s 90 of the National Parks and Wildlife Act 1974. These conditions of consent have subsequently been applied in Section B of Annexure A.

15. Based on these two heritage impact statements, the additional correspondence regarding heritage matters and the parties’ submissions, I accept that the proposed development meets the objectives of WLEP cl 5.10, and that appropriate conditions of consent have been applied as part of this s 34 agreement at Annexure A.

16. Pursuant to WLEP cl 5.21, the site is mapped as flood-prone land. From the parties’ submission and the Flood Study and Flood Risk Management report prepared by AKY Civil Engineering Consultants dated November 2022, I accept that the matters listed at subcl 5.21(3) have been adequately considered and the requirements at subcl 5.21(2) are met with the proposed development, and that the potential flood risk has been adequately managed.

17. Pursuant to WLEP cl 6.1, the subject site is mapped as Class 2 Acid Sulfate Soils. Subsequently, a Preliminary Acid Sulfate Soil Assessment and Acid Sulfate Soil Management Plan has been prepared by JK Environments, dated 24 October 2022, which considers the proposed excavation methods for construction of the proposed dwelling, and provides recommendations for the management of acid sulfate on the site, in accordance with cl 6.1.

18. Based on the parties’ submissions and the Geotechnical and Hydrogeological Investigation by JK Geotechnics dated 17 October 2022, I am satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, and that accordingly, the provisions of WLEP cl 6.2 are met.

19. The development application is accompanied by a BASIX certificate that applies to the proposed development.

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the subject site has been historically used for residential purposes and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose.

21. The site is subject to the provisions of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) as it is identified on the Sydney Harbour Catchment map. The parties submit, and I accept that the proposed development is not likely to be readily visible from the waterways and foreshores of Sydney Harbour, and will comply with the requirements of the SREP in terms of water quality, urban run-off and flood risk management, through the implementation of the Stormwater Drainage Plan and appended letter dated 8 February 2023 by A K Y Civil Engineering.

22. 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, as required by s 34(3) of the LEC Act.

23. 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’ decision.

24. The Court notes:

1. Woollahra Municipal Council as the relevant consent authority, has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 591/2022 to rely upon the following amended plans and documents:

Sheet number	Revision	Author	Description	Date(s)
0001	D	Domenic Alvaro	Cover Sheet - Revised Issue for Planning Consent	11.12.2023
0004	C	Domenic Alvaro	Site Plan - Proposed - Revised Issue for Planning Consent	11.12.2023
0005	A	Domenic Alvaro	Demolition Plan - Issue for Planning Consent	15.12.2022
0008	D	Domenic Alvaro	Lower Ground Plan - Revised issue for Planning Consent	11.12.2023
0009	E	Domenic Alvaro	Ground Level Plan - Revised Issue for Planning Consent	11.12.2023
0010	E	Domenic Alvaro	Level 01 Plan - Revised Issue for Planning Consent	11.12.2023
0011	C	Domenic Alvaro	Pacific Street Elevations - Revised Issue for Planning Consent	11.12.2023
0012	E	Domenic Alvaro	Elevations - Revised Issue for Planning Consent	11.12.2023
0013	D	Domenic Alvaro	Sections - Revised Issue for Planning Consent	11.12.2023
0017	C	Domenic Alvaro	Material Schedule - Revised Issue for Planning Consent	11.12.2023
0021	B	Domenic Alvaro	Additional Sections - Revised Issue for Planning Consent	11.12.2023
L-DA-01	A	360 Degrees	Landscape Schedules & Notes	14.12.2022
L-DA-02	A	360 Degrees	Landscape Statement & Diagrams	14.12.2022
L-DA-03	A	360 Degrees	Tree Protection & Removal Plan	14.12.2022
L-DA-04	A	360 Degrees	Lower Ground Floor Landscape Plan	14.12.2022
L-DA-05	A	360 Degrees	Ground Floor Landscape Plan	14.12.2022
L-DA-06	A	360 Degrees	Level 1 Landscape Plan	14.12.2022
L-DA-07	A	360 Degrees	Landscape Sections	14.12.2022
L-DA-08	A	360 Degrees	Planting Palette
H-01	D	AKY Civil Engineering	Stormwater Management Plan	08.02.2023
H-02	D	AKY Civil Engineering	Stormwater Management Plan	08.02.2023
22016	Report - Flood Study and Flood Risk Management	AKY Civil Engineering	November 2022
35402Arpt	Rev 1	Geotechnical and Hydrogeological Investigation Report	JK Geotechnics	3 April 2023
E35402Plet-ASS	Preliminary Acid Sulfate Soil Assessment & Acid Sulphate Soil Management Plan	JK Environments	24 October 2022

25. The Court orders:

1. The written request made pursuant to cl 4.6 of the Woollahra Local Environment Plan 2014 to vary the height of buildings standard pursuant to cl 4.3 of the Woollahra Local Environment Plan 2014, prepared by GSA Planning dated 14 March 2024, is upheld.

2. The appeal is upheld.

3. Development Application 591/2022, as amended, for the demolition of the existing dwelling house and construction of a new dwelling, rear tandem garage with upper floor gym, swimming pool and landscaping works at 7 Pacific Street, Watsons Bay is determined by the grant of development consent subject to the conditions at Annexure ‘A’.

E Washington

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 11 April 2024