MHN Design Union Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1024

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	MHN Design Union Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1024
Hearing dates:	Conciliation conference on 7 & 12 November 2019
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1)   Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition A.3 of the conditions of consent at Annexure “A”. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum $3,000 within 28 days of these orders. (3) The Applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 (“WLEP”), prepared by aSquare Planning dated 22 October 2019 (contained at Annexure “B”), seeking to justify the contravention of the minimum lot size for residential flat buildings development standard in clause 4.1A of the WLEP is upheld. (4)   The appeal is upheld. (5)   Development Consent be granted to DA-513/2017/1 seeking consent for the demolition of the existing dwelling house and the construction of a residential flat building comprising 6 units over 3 levels including basement parking and strata subdivision at 584 Old South Head Road, Rose Bay, subject to the conditions of consent in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Environmental Planning and Assessment Regulation 2000
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	MHN Design Union Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: P McEwen SC (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Spectrum Legal Group (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/272624
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Woollahra Local Planning Panel’s refusal of Development Application No. DA513/2017/1 (‘DA’).

2. The DA sought consent for the demolition of the existing dwelling house and the construction of a residential flat building comprising 6 units over 3 levels including basement parking and strata subdivision at 584 Old South Head Road, Rose Bay, also identified as Lot 44 Section B DP4247 (‘site’).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 & 12 November 2019. I presided over the conciliation conference.

4. After 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 granting development consent to the development application subject to conditions.

5. 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions and I so agree, in particular noting the following (having regard to Council’s DA assessment report dated 16 August 2018 and the commentary at Annexure C to the agreement):

1. The application was notified, and the submissions subsequently received have been considered.

2. Having regard State Environmental Planning Policy No 55 – Remediation of Land and in particular cl 7, consideration has been given to whether the land is contaminated. Given the site has historically been used for residential purposes, I agree with Council that no further investigation is required in this instance.

3. Having regard to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, the design quality of the development has been considered (including with reference to the Apartment Design Guide) and the Applicant has filed a Design Verification Statement in accord with the requirements of cll 50(1AB) and 50(1A) of the Environmental Planning and Assessment Regulation 2000.

4. The application is compliant with the development standards in Woollahra Local Environmental Plan 2014 (‘LEP’) with the exception of provisions at cl 4.1A relating to minimum lot size for residential flat buildings (a written request submitted by the Applicant under cl 4.6 of the LEP is considered below).

5. Having regard to cl 6.2 of the LEP, I am satisfied that consideration has been given to the relevant matters listed at subclause (3) in regard to earthworks.

6. The Applicant has filed a written request under cl 4.6 of the LEP to vary the standard at cl 4.1A of the LEP relating to minimum lot size for residential flat buildings. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the LEP). This is because the written request shows how, otherwise, the development achieves the planned density and desired future character of the area, and thus results in the achievement of the objective of cl 4.1A.

2. The written request adequately establishes that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of the LEP). This is through demonstrating how the development’s combination of density and design quality (including the amendments incorporated in the course of the conciliation) fits the context and is consistent with the zone objectives.

3. On the basis of the above, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the zone (cl 4.6(4)(a)(i) of the LEP).

4. For the reasons outlined above, I am also satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the minimum lot sizes for dual occupancies, multi dwelling housing and residential flat buildings standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP are met.

5. Mindful of cl 4.6(5), I am satisfied the proposal does not raise any matter of significance for State or regional environmental planning.

6. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

7. On the basis of the above, 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.

8. 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.

9. The Court orders that:

1. Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition A.3 of the conditions of consent at Annexure “A”.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum $3,000 within 28 days of these orders.

3. The Applicant’s written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 (“WLEP”), prepared by aSquare Planning dated 22 October 2019 (contained at Annexure “B”), seeking to justify the contravention of the minimum lot size for residential flat buildings development standard in clause 4.1A of the WLEP is upheld.

4. The appeal is upheld.

5. Development Consent be granted to DA-513/2017/1 seeking consent for the demolition of the existing dwelling house and the construction of a residential flat building comprising 6 units over 3 levels including basement parking and strata subdivision at 584 Old South Head Road, Rose Bay, subject to the conditions of consent in Annexure “A”.

…………………………

P Walsh

Commissioner of the Court

Annexure A (209 KB, pdf)

Annexure B (1.50 MB, pdf)

Plans (Architectural) (6.34 MB, pdf)

Plans (Landscape) (3.99 MB, pdf)

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Amendments

21 January 2020 - Pursuant to UCPR 36.17, the decision in these proceedings, published on 16 January 2020, be varied so that the reference to “height development standard” at paragraph [6(4)] be amended to read “minimum lot sizes for dual occupancies, multi dwelling housing and residential flat buildings standard”.

Decision last updated: 21 January 2020