Mirzikinian v Woollahra Municipal Council

[2020] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mirzikinian v Woollahra Municipal Council [2020] NSWLEC 1160
Hearing dates:	Conciliation conference on 5 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1)   The Applicant is granted leave to amend the application and rely on the plans listed under Condition A.3 below the heading ‘Approved Plans and supporting documents’ in Annexure ‘A’. (2)   The Applicant’s written request prepared under clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), prepared by GSA Planning dated March 2020, seeking a variation of the development standard for height under clause 4.3 of the WLEP, is upheld. (3)   The appeal is upheld. (4)   Development Application number DA573/2018 for alterations and additions to the existing dwelling house, including associated landscape works at 6A Wentworth Street, Point Piper NSW 2027 is approved subject to the conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – heritage conservation area – exceedance of height control – clause 4.6 exception to development standard –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
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Kristy Mirzikinian (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: S Kondilios (Solicitor) (Applicant) P Rigg (Solicitor) (Respondent)   Solicitors: Hall & Wilcox (Applicant) Peter R Rigg (Respondent)
File Number(s):	2019/220397
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by the Woollahra Municipal Council (the Respondent) of Development Application No. 573/2018 for the substantial demolition of the existing dwelling and the construction of a two-storey dwelling partially above the existing basement garage with new swimming pool within the front yard and associated landscape works at 6A Wentworth Street, Point Piper.

2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (LEC Act) on 5 March 2020, which commenced with an onsite view under s 34(1) of the LEC Act between the parties, and at which I presided.

3. 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. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 March 2020.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. There are jurisdictional prerequisites contained in the provisions of the Woollahra Local Environmental Plan 2014 (WLEP).

6. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the WLEP, which permits development for the purpose of a dwelling house with consent.

2. The provisions of the R2 zone permit residential accommodation development that is consistent with the objectives of the zone, which are as follows:

• 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.

3. As the site is within the curtilage of the ‘Kilmory’ building, identified in Schedule 5 of the WLEP as “Franciscan Missionaries of Mary – building by Manson and Pickering (c1912), interiors, grounds, gardens, retaining walls, entrance gateposts and gates” (I287), the provisions of cl 5.10(4) apply to the site and I am satisfied on the basis of the agreed position of the heritage experts that the impacts to the heritage significance of ‘Kilmory’ are acceptable.

4. In regard to those matters relevant to Earthworks required to be considered by cl 6.2 of the WLEP, I note that excavation required for the proposed swimming pool avoids likely disruption to the drainage and retention of stormwater to No. 6 Wentworth Street by the onsite detention tank over which a pre-existing easement for access and services applies, and will continue to apply, to the benefit of Strata Plan SP77598, being the adjoining property at No. 6 Wentworth Street, Point Piper.

5. Clause 4.3 of the WLEP provides for a maximum height of buildings on the site of 9.5m, and the parties are agreed the maximum height standard is exceeded by the proposal where the topmost roof extends over an existing basement which is considered ground level (existing) as defined by the WLEP. For the reasons that follow, I am satisfied that the written request prepared by GSA Planning dated March 2020 adequately addresses the contravention of the height control pursuant to cl 4.6 of the WLEP:

1. The proposed roof adopts the line of the existing roof which itself exceeds the height control, and results in a maximum non-compliance of 260mm for a portion of the topmost roof.

2. Compliance with the development standard is unreasonable or unnecessary as the objectives of the height standard at cl 4.3 of the WLEP are achieved notwithstanding the non-compliance with the standard. These objectives are set out as follows:

• To establish building heights that are consistent with the desired future character of the neighbourhood,

• To establish a transition in scale between zones to protect local amenity,

• To minimise the loss of solar access to existing buildings and open space,

• To minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion

• To protect the amenity of the public domain by providing public views of the harbour and surrounding areas

3. In considering the proposal’s consistency with the objectives of the height standard, I accept that the proposed development substantially maintains the height of the existing building, and as a consequence the area of the exceedance does not alter existing solar access to neighbouring properties or open space. Furthermore, I accept that the exceedance, being in the centre of a single flat roof form that is otherwise well within the height standard but for the basement from which the dimension is measured, minimises the impacts of new development on adjoining properties.

4. Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control as the portion of the roof the subject of the exceedance is indistinguishable from the complying roof form of which it is an integral part, and for the reasons already stated that I am satisfied the proposal is consistent with the objectives of the height standard and the R2 zone.

5. Finally I accept the reasons advanced in the written request as to the grounds on which the proposal maintains the desired future character of Point Piper. I consider the view analysis prepared by Atelier Illume to sufficiently demonstrate view sharing to adjoining and adjacent properties due to the low level form of the proposal which serves to retain the garden setting and streetscape elements of the Kilmory site. In particular, the amended plans provide for a post and wire system so as to easily establish the maximum foliage heights for the substantial hedge located between Nos. 4D, 6 and 6A Wentworth Street as set out on Drawing DA52.

6. I am also satisfied that there is no reason to that the Court should not assume the concurrence of the Secretary of the Department of Planning and Environment pursuant to cl 4.6(4)(b).

7. As the jurisdictional prerequisites to the grant of consent have been addressed, 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the application and rely on the plans listed under Condition A.3 below the heading ‘Approved Plans and supporting documents’ in Annexure A.

2. The Applicant’s written request prepared under clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), prepared by GSA Planning dated March 2020, seeking a variation of the development standard for height under clause 4.3 of the WLEP, is upheld.

3. The appeal is upheld.

4. Development Application number DA573/2018 for alterations and additions to the existing dwelling house, including associated landscape works at 6A Wentworth Street, Point Piper NSW 2027 is approved subject to the conditions in Annexure ‘A’.

…………………….

T Horton

Commissioner of the Court

Annexure A (654 KB, pdf)

Plans (4.30 MB, pdf)

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Decision last updated: 03 April 2020