Li v Woollahra Municipal Council

[2023] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:

Li v Woollahra Municipal Council [2023] NSWLEC 1191

Hearing dates:

Conciliation conference held on 29 March 2023

Date of orders:

20 April 2023

Decision date:

20 April 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended plans at condition A.3 of the conditions of consent, described in Annexure A.

(2)   The appeal is upheld.

(3) The amended written requests made pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014, prepared by GSA and filed in March 2023, which seeks to vary development standard in clause 4.3 – Height, is upheld.

(4)   Development Application 552/2021/1, as amended, seeks to convert a Strata titled dual occupancy to a single residential dwelling by alterations and additions on Lots 1 and 2 in Strata Plan (SP) 51519, also known as 92-94 Wolseley Road, Point Piper, NSW is determined by grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling - breach in height development standard – cl 4.6 request for variation of standards - conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, ss 49, 55

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

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

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.6

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

John Li (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
K Mezinec (Solicitor)(Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/202253

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application 552/2021/1 by the Woollahra Municipal Council (hereafter the Council), which as amended, seeks to convert a Strata titled dual occupancy to a single residential dwelling under Torrens title, by alterations and additions to the existing dwellings on Lots 1 and 2 in Strata Plan (SP) 51519, also known as 92-94 Wolseley Road, Point Piper, NSW (hereafter the site).

Background

2. Development Application 552/2021/1 (the application) was lodged with Council on 26 November 2021, and after referral to the Woollahra Local Planning Panel (the Panel), which determined to refuse the application on 2 June 2022, was refused by Council on 8 June 2022. The (amended) application was notified and renotified, with no written submissions received during the notification periods.

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

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), with an onsite view at the request of the parties and held in person.

5. The Council agreed for the applicant to amend the plans and documents that support, and amend the application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved. The Council confirms it has authority from the Panel to enter an agreement.

7. 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, pursuant to s 4.15, to grant consent to Development Application 552/2021/1, subject to conditions in Annexure A.

Jurisdictional prerequisites

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

1. Woollahra Local Environmental Plan 2013 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent. The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the WLEP

2. The amended application relies on cl 4.6 written request, seeking a variation of the non-compliant height as designed, pursuant to cl 4.6 of the WLEP.

3. With regards to the cl 4.6 written request seeking a height variation, it explains that the non-compliance of the height standard (of 9.5m) with a proposed maximum height of 12.56m (a variation of 32%) does not result in a development that is incompatible with the character of the surrounding area, nor results in adverse amenity, including solar access or view loss. The proposed height variation will not perceptibly change the presentation of the existing dwelling/s to the streetscape, is lesser than the existing height breach of the building on the site and does not result in adverse bulk/scale impacts to adjoining properties. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the WLEP and the (height) development standard objectives described in cl 4.3.

4. The cl 4.6 written request notes that the existing building on the site breaches the maximum height provision of 9.5m by up to 56%. The proposed change to the upper rear portion of the building results in a reduction in the building form to part of the area that currently breaches the height standard.

5. The Court must be satisfied, to grant consent to the application, that the cl 4.6 request to vary the development standard is appropriately assessed, pursuant to the requirements set out in cl 4.6 of the WLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written requests seeking variation of the height development standard sufficiently describes the environmental planning grounds to justify the non-compliances, and that strict compliance of the standards would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R2), as well as height (cl 4.3) standards. The breach in the development standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, and appropriately reduces the existing breach in height standard.

6. The proposed development is considered to be in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

7. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cl 4.3 development standard should be granted.

2. EPA Reg:

1. The applicant has satisfied the Court with regards to consent of landowners relevant to the application, pursuant to cl 49.

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

1. A BASIX Certificate (A492277) issued on 23 March 2023 is relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended application.

4. 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 application and the conditions of consent. The original application was publicly notified and renotified in accordance with the WDCP, and the Court is satisfied that no submissions were received.

Grant of consent

9. Based on the amended plans and supporting documents to the application, the parties explained 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.

10. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and potential for amenity impacts including privacy.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application 552/2021/1 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. 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.

13. The Court notes that:

1. The Woollahra Municipal Council, as the relevant consent authority, has approved, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application 552/2021/1.

14. The Court orders that:

1. Leave is granted to the applicant to rely on the amended plans at condition A.3 of the conditions of consent, described in Annexure A.

2. The appeal is upheld.

3. The amended written requests made pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014, prepared by GSA and filed in March 2023, which seeks to vary development standard in clause 4.3 – Height, is upheld.

4. Development Application 552/2021/1, as amended, seeks to convert a Strata titled dual occupancy to a single residential dwelling, by alterations and additions on Lots 1 and 2 in Strata Plan (SP) 51519, also known as 92-94 Wolseley Road, Point Piper, NSW is determined by grant of consent, subject to the conditions set out in Annexure A.

Sarah Bish

Commissioner of the Court

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Annexure A

Decision last updated: 20 April 2023