Merman Investments Pty Ltd v Woollahra Municipal Council

[2023] NSWLEC 1107

Land and Environment Court

New South Wales

Medium Neutral Citation:

Merman Investments Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1107

Hearing dates:

Conciliation Conference commencing 1 December 2022

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Application DA66/2022/1, for alterations and additions to the approved Residential Flat Building at 3 Wiston Gardens, Double Bay, (otherwise known as Lot 4 DP 15968), is determined by way of granting development consent, subject to the conditions set out in Annexure “A”.

(3) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent referred to in paragraph (2) above, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – clause 4.6 objections to height and floor space ratio controls – agreement

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15
Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Water Catchments) 2022

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Chs 6-12

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

Woollahra Local Environmental Plan 2014, cll 4.3, 4.4, 4.6, 5.21, 6.1

Category:

Principal judgment

Parties:

Merman Investments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor)(Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/246647

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by Merman Investments Pty Ltd (the Applicant) against Woollahra Council (the Respondent). The Applicant filed this appeal against the deemed refusal of the Development Application DA66/2022/1 on 19 August 2022.

2. The Development Application seeks Development Consent for alterations and additions to the approved Residential Flat Building at 3 Wiston Gardens, Double Bay, otherwise known as Lot 4 DP 15968. The original proposal, the subject of Development Consent DA325/2020/1, was approved by the Court on 1 October 2021 and is in the process of construction.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This commenced on 1 December 2022.

4. At the conciliation conference, the parties reached an in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The conciliation process was adjourned to allow the parties to finalise agreements. The proposed decision was to grant Development Consent, to the Development Application, subject to agreed outcomes and agreed conditions.

5. The Development Application involves a number of changes to the approved development. This included a variety of internal reconfigurations as well as adjustments to external terrace areas and facades.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

Breach of Development Standards

7. The parties agree that a variation to the “Height of Building” (HoB) and “Floor Space Ratio” (FSR) Development Standards, pursuant to cll 4.3 and 4.4 of the Woollahra Local Environmental Plan 2014 (WLEP 2014), can be supported.

Clause 4.6(4) ‘Exceptions to development standards’ (Height of Buildings)

8. Clause 4.3(2) of the WLEP 2014, by reference to the Council’s ‘Height of Buildings Map’, establishes a maximum building height for the site of 10.5m. The proposed development contravenes this standard.

9. A written request pursuant to cl 4.6 of the WLEP 2014, dated December 2022, has been prepared by Gyde consultants. The FSR cl 4.6 request adequately demonstrates that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. there are sufficient environmental planning grounds to justify contravening the development standard.

10. The written request notes that, at the time of lodgement of this application, the site had been extensively excavated in anticipation of the proposed construction. As a result, ground levels at the time were the excavated levels, not the ground levels that existing prior to excavation commencing.

11. This change in ground level has resulted in a significant numerical increase in the measured HoB compared with the original Development Application outcomes. The physical form of the proposed building remains similar to the original approved development but the excavation has increased the HoB to between 12.51m to 22.45m.

12. The written request states that the proposed development is in the public interest because it is consistent with the objectives of the development standard and the zone objectives. In particular, the written request also makes the following agreed observations:

1. The proposed development will be consistent with the desired future character of the neighbourhood.

2. The possible solar access issues that may arise from the variations have been carefully considered and found to be acceptable.

3. The possible impact on views has been assessed and considered acceptable.

Clause 4.6(4) ‘Exceptions to development standards’ (floor space ratio)

13. Clause 4.4(2) of the WLEP 2014, by reference to the ‘Floor Space Ratio Map’, establishes a maximum FSR for the site of 0.65:1. The proposed development contravenes this standard.

14. A written request pursuant to cl 4.6 of WLEP 2014, dated December 2022, has been prepared by Gyde consultants. The FSR cl 4.6 request adequately demonstrates that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. there are sufficient environmental planning grounds to justify contravening the development standard.

15. The written request notes that this Development Application seeks an increase in the approved FSR from 1.12:1 to a proposed FSR of 1.58:1. The written request sets out that the increase is largely attributable to the conversion of what was basement storage areas on Level 1 and 2. In addition, adjustments to “existing ground line” to the deepest point of excavation have changed the floor area to be included in the gross floor area. This changes the method of calculation of FSR and results in a significant numerical increase without changing the building form.

16. The written request states that the proposed development is in the public interest because it is consistent with the objectives of the development standard and the zone objectives. In particular, the written request also makes the following agreed observations:

1. The numerical changes in the calculated gross floor area do not result in a significant change to the overall presentation of the development.

2. Notwithstanding the increased non-compliance, the building envelope remains consistent with the approved building envelope and the form of envelope considered forming existing the Development Consent.

3. The re-design improves the overall presentation of the building.

4. Impacts on views from adjoining premises are minimal and remain consistent with the approved development.

Upholding the written request to vary Development Standards

17. The parties support upholding the written requests both in terms of the merit and jurisdictional considerations. As noted, I must dispose of the proceedings in accordance with the parties’ agreement, if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

18. I have reviewed the amended cl 4.6 written requests for jurisdictional content. It is for the reasons outlined above that I am satisfied that the cl 4.6 written request, for the variation to the Height of Building Development Standard and to the Floor Space Ratio Development Standard, address the matters raised by cl 4.6 of the WLEP 2014. The decision to uphold the written request, to vary the Height of Building Development Standard, is a decision that the Court could have made in accordance with s 34(3) of the LEC Act.

19. In respect to other matters, I am also satisfied that the decision is one that the Court could make in the proper exercise of its functions. In reaching that state of satisfaction, I note the following:

1. Pursuant to the WLEP 2014, the subject site is zoned R3 Medium Density Residential. In determining the Development Application, I have had regard to the objectives of the zone.

2. The application was placed on public notification from 16 to 31 March 2022. The Council received three submissions raising a number of merit and jurisdictional issues which have been considered. These included concerns regarding the validity of the cl 4.6 objection, concerns over bulk and scale, view loss, privacy impacts and solar access issues. The notification requirements under the EPA Act have been satisfied.

3. A BASIX Certificate No. 1115315M_07 was issued on 22 February 2022 to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, consideration has been given to whether the site is contaminated. The land requires remediation and will be suitable for the purpose for which the development is proposed to be carried out once remediation has been undertaken as required by the conditions of the existing development consent ‘DA325/2020’.

5. Consideration has been given to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP).

1. By virtue of the savings provision in s 6.65 of the current Biodiversity and Conservation SEPP, Chs 6-12 of the Biodiversity and Conservation SEPP as in force immediately before their repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022 continue to apply to the proposed development.

2. This means that Chs 6-12 of the Biodiversity and Conservation SEPP as at 20 November 2022 (the applicable Biodiversity and Conservation SEPP chapters) apply to the proposed development instead of Chs 6-12 of the current Biodiversity and Conservation SEPP.

3. There are no matters in the applicable Biodiversity and Conservation SEPP chapters on which the Court must form an opinion in order for the Court to have jurisdiction to grant development consent for the proposed development.

6. Clause 5.21 of the WLEP 2014 “Flood Planning” applies to the site and the site is identified as flood affected. Council’s drainage engineer has undertaken an assessment of the proposal and considers the proposed works to be acceptable, subject to the conditions provided at Annexure A. The proposed development:

1. is compatible with the flood function and behaviour on the land;

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

4. incorporates appropriate measures to manage risk to life in the event of a flood; and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

7. Clause 6.1 of the WLEP 2014 applies to the subject site and the site is identified as Class 5 and a small proportion of the site as Class 2 on the Acid Sulfate Soils Map. Development consent must not be granted under cl 6.1 ‘Acid sulfate soils’ of the WLEP 2014 unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. The report was provided and endorsed under the Original Consent.

20. 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’ agreement. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to the EPA Act.

Orders

21. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application DA66/2022/1, for alterations and additions to the approved Residential Flat Building at 3 Wiston Gardens, Double Bay, (otherwise known as Lot 4 DP 15968), is determined by way of granting development consent, subject to the conditions set out in Annexure “A”.

3. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent referred to in paragraph (2) above, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

…………………………

S Harding

Acting Commissioner of the Court

Annexure A (252203, pdf)

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Decision last updated: 10 March 2023