MHN Design Union Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1408

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1408

Hearing dates:

Conciliation Conference held on 11 July 2024

Date of orders:

18 July 2024

Decision date:

18 July 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Application No. DA172/2023/1 for the demolition of the existing strata titled residential flat building and construction of a new dwelling house, swimming pool and landscaping at 54 Streatfield Road, Bellevue Hill NSW 2023, also identified as Strata Plan 8639, is determined by the grant of development consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house - agreement.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4

Woollahra Local Environmental Plan 2014, cll 5.10, 6.1, 6.2, 6.9,

Category:

Principal judgment

Parties:

MHN Design Union Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/445307

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by MHN Design Union Pty Ltd (the Applicant) which was filed after the refusal by Woollahra Council (the Respondent) of DA 172/2023/1.

2. The Development Application seeks development consent for demolition of existing residential flat building and construction of a dwelling house, with swimming pool and associated landscaping, at 54 Streatfield Road, Bellevue Hill, otherwise known as Strata Plan 8639.

3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act), which was held on 11 July 2024. The proceedings commenced on site. There were no thirds parties present to make submissions to the Court.

4. The parties advised the Court that an agreement under s 34(3) of the LEC Act was reached in the conciliation phase of the appeal. The decision agreed upon by the parties is that the appeal is upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment in Annexure A.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. After reviewing the applicable material, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Woollahra Local Environmental Plan 2014 (WLEP 2014), the subject site is zoned R3 Medium Density Residential. In determining the Development Application, regard has been given to the objectives of the zone.

2. The application was placed on public notification from 14 June to 14 July 2023. A total of three (3) submissions were received from the public during the notification period. The parties have had regard to those submissions.

3. The parties have considered a demolition report prepared by the applicant, along with an Aboriginal Heritage Due Diligence Assessment Report. These reports respond to the requirements of cl 5.10 of WLEP 2014.

4. In accordance with cl 6.1 of WLEP 2014, on Acid Sulfate Soils, the parties have considered the matters relating to acid sulfate soils and agree that, due to the site characteristics and location, a preliminary assessment is not required.

5. The requirements of cl 6.2 Earthworks of WLEP 2014 have been considered by the parties. Two reports on the geotechnical and hydrogeological aspects of the development were prepared by JK Geotechnics (dated 15 May 2023 and November 2023) and considered by the parties. The parties agree that the required matters for earthworks have been considered and, either addressed by these reports, and/or covered by the proposed conditions in Annexure A to this judgment.

6. The parties note that an amendment to WLEP 2014, relating to tree cover, applies to the site. This amendment relates cl 6.9 Tree Canopy Cover in Zones R2 and R3. The parties agree that there has been an assessment of the aboricultural issues on the site. There has also been a comprehensive landscape plan prepared addressing this requirement.

7. A BASIX Certificate accompanies the development application to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (Certificate Number 1391254S).

8. As required by State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP), consideration has been given as to the sites coastal location and whether the site is contaminated.

Chapter 2 – Coastal Management

1. The site is located outside of the Coastal Environmental Area and the Coastal Use Area, and no further consideration is required under Chapter 2.

Chapter 4 - Contamination

1. The parties agree that the site contains an existing residential development and has been continuously used for residential purposes. As such, the parties consider that the chance of contamination is minor and that the issues of contamination have been adequately addressed.

1. As required by State Environmental Planning Policy Biodiversity and Conservation) 2021 (BC SEPP) the parties have considered:

Chapter 2 - Vegetation

1. The parties note that whilst there are four “low value” trees to be removed, the parties agree that the landscape plan adequately offsets these outcomes along with the proposed tree planting as part of the overall landscape solution.

Chapter 6 – Water Catchments

1. The parties have given the required consideration to the relationship of the development to Sydney Harbour Catchment and the engineering solution for stormwater management. The site is located outside the Foreshores and Waterways Area identified in the relevant map. The parties have also agreed conditions to be included in the development consent relating to stormwater management.

7. 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. The following orders give effect to the agreement reached by the parties.

8. The Court notes that:

1. The Respondent, Woollahra Municipal Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA172/2023/1 to rely on the documents as outlined below.

Reference	Description	Author/Drawn	Date(s)
DA-04 to DA-14 inclusive, DA-16, DA22. - All Revision D	Architectural Plans	MHNDUNION	16/02/2024
Stormwater Plans SWDA1.1-1.7 Revision 2	Stormwater Plans	Partridge	28/02/2024

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA172/2023/1 for the demolition of the existing strata titled residential flat building and construction of a new dwelling house, swimming pool and landscaping at 54 Streatfield Road, Bellevue Hill NSW 2023, also identified as Strata Plan 8639, is determined by the grant of development consent subject to conditions contained in Annexure A.

…………………………

S Harding

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 22 July 2024