Li v Woollahra Municipal Council (No. 2)

[2023] NSWLEC 1337

Land and Environment Court

New South Wales

Medium Neutral Citation:

Li v Woollahra Municipal Council (No. 2) [2023] NSWLEC 1337

Hearing dates:

Conciliation Conference on 6 February 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 327/2021 for the demolition of existing structures and the construction of a dwelling, swimming pool, and associated landscaping and site works at 85-89 Hopetoun Avenue, Vaucluse, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a new dwelling, swimming pool and associated landscaping – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000

Environmental Planning and Assessment Regulation 2021, Sch 6 s 3

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Woollahra Local Environmental Plan 2014, 5.21, 6.1, 6.2

Cases Cited:

Li v Woollahra Municipal Council [2023] NSWLEC 1298

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

John Li (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
J Hewitt (Solicitor) (Respondent)

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

File Number(s):

2022/194938

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 327/2021 for the demolition of existing structures and the construction of a dwelling, swimming pool and associated landscaping works (the proposal), at 85-89 Hopetoun Avenue, Vaucluse (Lot 100 in DP 1209632) (the site), by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 February 2022. I presided over the conciliation conference. 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.

3. An application for joinder following the conciliation conference was dismissed by the Court on 14 June 2023 (Li v Woollahra Municipal Council [2023] NSWLEC 1298).

4. 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.

5. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended Plans

6. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) continues to apply to the application, because the application was lodged on 5 August 2021 and not yet determined on 1 March 2022 (s 3 of Sch 6 to the Environmental Planning and Assessment Regulation 2021). Pursuant to s 3(2) of Sch 6 to the Environmental Planning and Assessment Regulation 2021, there is a requirement to use the NSW Planning Portal under the EPA Regulation 2000, therefore cll 55(1), 55AA(2)(d) or 121B(1) of the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court.

7. The Council, as the consent authority, consented to the amendment of the application on 6 February 2023. The amended application amended the plans and documents the subject of the application, as follows:

• Architectural Plans numbered DA-00 to DA-19 (Revision E) prepared by MHND Union dated 12 January 2023;

• Landscape Plans numbered L-01 to L-05 (Revision D) prepared by Site Design + Studios dated 20 September 2022; and

• BASIX Certificate 13711375 dated 5 February 2023.

8. As a result of the amendment of the proposal, the parties reached agreement during the conciliation conference.

Consideration

9. The site is zoned R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

10. The proposal is for a single dwelling, which is permissible in the R2 zone. A condition of consent is proposed to limit the use to a single dwelling (condition A6).

11. Draft amendments to the LEP 2014 and the Woollahra Development Control Plan 2015 (DCP 2015) relating to proposed floor space ratio and urban greening controls were publicly exhibited post gateway determination from 10 August 2022 to 16 September 2022. On this basis, this is a relevant consideration under s 4.15(1)(a)(ii) of the EPA Act. I am satisfied that the draft instrument does not raise any issues that would preclude the grant of consent to the application.

12. I accept the Council’s assessment that there is unlikely to be any acid sulfate affectation, pursuant to cl 6.1 of LEP 2014.

13. I accept the planning experts agreed evidence that the reduction of excavation proposed results in an acceptable level of excavation, pursuant to cl 6.2 of LEP 2014. I am satisfied by the Council’s submissions in respect of the matters raised in cl 6.2(3) of LEP 2014.

14. I accept the Council’s submission that flood planning pursuant to cl 5.21 of LEP 2014 has been considered and the site is not within a flood mapped area.

15. I am satisfied the site is suitable for the proposal because the site has been used for residential purposes for some time, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

16. I have considered the joint report prepared by the planning experts and filed with the Court on 20 January 2023. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 7 February 2023 and the Supplementary Agreed Statement – Jurisdictional Prerequisites on 14 June 2023 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

17. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 327/2021 for the demolition of existing structures and the construction of a dwelling, swimming pool, and associated landscaping and site works at 85-89 Hopetoun Avenue, Vaucluse, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (603854, pdf)

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Decision last updated: 30 June 2023