Oliver-Frost v Woollahra Municipal Council

[2024] NSWLEC 1289

Land and Environment Court

New South Wales

Medium Neutral Citation:

Oliver-Frost v Woollahra Municipal Council [2024] NSWLEC 1289

Hearing dates:

Conciliation conference 7 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to file the plans and documents listed at [2] of this judgment.

(2) The appeal is upheld.

(3) Development Application DA70/2023/1, as amended, for the demolition of the existing dwelling and garage and construction of a four-storey dual occupancy development with basement parking, swimming pools and associated landscaping at 588 New South Head Road Point Piper, also identified as Lot 1 in Deposited Plan 952343 is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Land and Environment Court Act 1979, ss 34AA, 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9 and 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Woollahra Local Environmental Plan 2014, cl 1.8A, 2.7, 4.1A, 4.3, 4.4E, 6.1, 6.2, 6.4, 6.9

Category:

Principal judgment

Parties:

Nigel Graham Oliver-Frost (First Applicant)
MHN Design Union Pty Ltd ACN 003 717 682 (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/309706

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA/70/2023/1. The development application seeks development consent for the demolition of the existing dwelling and construction of a four-storey dual occupancy including a basement, two swimming pools and landscaping (DA) at 588 New South Head Road, Point Piper legally described as Lot 1 in DP 952343 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the Applicant amending development application DA/70/2023/1 in accordance with the documents listed below (amended DA):

Reference	Description	Author/Drawn	Date(s)
DA-01 Rev F Cover Page DA-03 Rev F Roof Plan DA-04 Rev F Basement Plan DA-05 Rev F Mezzanine DA-06 Rev F Ground Floor Plan DA-07 Rev F Level 1 Floor Plan DA-08 Rev F Level 2 Floor Plan DA-09 Rev F Sections A DA-10 Rev F Sections B DA-11 Rev F Section C DA-12 Rev F Elevations North and South DA-13 Rev F Elevations East and West DA-20 Rev F Schedule of External Finishes DA-21 Rev F Waste Management Plan SK.1 Rev F Privacy Sections SK.2 Rev F Privacy Sections	Architectural Plans	MHNDUNION	08/04/2024
1371184M_02	BASIX Certificate	NSW Department of Planning and Environment	30/04/2023
2023-003 Issue 3	Geotechnical Report	Crozier Geotechnical Consultants	28/03/2024
Landscape DA Report Issue C	Landscape Plan	SQ1	04/2024
MH2402-S01[D]	Structural Report	Acroyali Engineering	03/04/2024
Rev A	Site Waste Minimisation Management Plan	MHNDUNION	28/03/2024
240240-588 NSHR, Point Piper – Noise Impact Assessment - RO	Acoustic Report	Pulse White Noise Acoustics	29/04/2024

3. 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 7 May 2024. I have presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 3 March 2023. The Respondent notified the DA between 22 March 2023 and 6 April 2023. Four submissions were received, two in support and two outlining their objections. At the commencement of the proceedings, one objector expressed their concerns orally. The Court and parties heard these concerns from the objector’s property.

10. In reaching agreement, the parties have considered the concerns raised by objectors.

Woollahra Local Environmental Plan 2014

11. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable WLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.1A Minimum lot sizes for dual occupancies applies to the amended DA, which stipulates a minimum site area of 460m². As shown on the survey plan prepared by Survplan dated 16 September 2022, the site is above the minimum requirement at 668.2m².

3. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended DA does not exceed the maximum building height as demonstrated by the architectural plans prepared by MHNDUNION, dated 8 April 2024.

4. Clause 4.4E floor space ratio does not apply to the amended DA pursuant to the savings provision in cl 1.8A(2) of the WLEP.

5. Clause 6.1 acid sulfate soils applies as the site is mapped as Class 5. However, the site is not located within 500m of Class 1, 2, 3 or 4 land. The provisions of cl 6.1 (2) and (3) therefore do not apply.

6. Clause 6.2 earthworks applies to the amended DA. The amended DA meets the provisions as supported by the Geotechnical Investigation Report prepared by Crozier Geotechnical Consultants dated February 2023 (original) and 28 March 2024 (updated), Structural Feasibility Report prepared by Acroyali Engineering dated 3 April 2024, Site Waste Minimisation and Management Plan prepared by MHNDUNION dated 28 March 2024 (Site Waste Minimisation Management Plan) and stormwater plans prepared by RTS Civil Consulting Engineers dated 14 February 2023 (stormwater plans).

7. I note the following in relation to cl 6.2, which is set out at [40] in the agreed jurisdictional statement. I note that Council considered that the reuse of 970m³ excavated material, set out in the Site Waste Minimisation Management Plan and enforced through condition C.1(d) at Annexure A, was a fundamental consideration to Council’s satisfaction that cl 6.2 had been appropriately addressed.

8. The parties agree that cl 6.4 limited development on foreshore area does not apply as the site is not located within the foreshore building line or foreshore area.

9. Clause 6.9 does not apply to the amended DA pursuant to the savings provision in cl 1.8A(2) of the WLEP. Notwithstanding, the parties agree that aboricultural and landscaping issues have been addressed.

Environmental Planning and Assessment Regulation 2021

13. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (137118M_02) that meets the provisions of s 27 of the EPA Regulation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. Sections 6.6, 6.7, 6.8, 6.9 and 6.10 are relevant.

15. The amended DA is accompanied by stormwater plans that adequately minimise stormwater impacts from the amended DA. The stormwater plans form part of the conditions of consent at Annexure A and further conditions within Annexure A will appropriately regulate ongoing stormwater management. I accept that the proposed development is unlikely to have an adverse environmental impact.

16. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The DA is accompanied by a Statement of Environmental Effects prepared by GSA Planning dated February 2023 which states that the site has a history of residential use for many years. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. The subject site has a frontage to a classified road, being New South Head Road. Accordingly, ss 2.119 and 2.120 State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) apply.

19. Transport for NSW have issued concurrence in relation to s 2.119. The terms of the concurrence form condition A.6 of Annexure A.

20. The amended DA is accompanied by an acoustic report prepared by PWNA Acoustics dated 29 April 2024. The recommendations to address acoustic impacts from New South Head Road has been included as conditions A.8 and C.1(e) of Annexure A.

21. I accept the parties’ agreement that the provisions of ss 2.119 and 2.120 of SEPP T&I are satisfied.

Conclusion

22. 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.

23. 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.

24. I have considered the jurisdictional prerequisites 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

25. The Court orders:

1. The Applicant is to file the plans and documents listed at [2].

2. The appeal is upheld.

3. Development Application DA70/2023/1, as amended, for the demolition of the existing dwelling and garage and construction of a four-storey dual occupancy development with basement parking, swimming pools and associated landscaping at 588 New South Head Road Point Piper, also identified as Lot 1 in Deposited Plan 952343 is determined by the grant of consent subject to conditions contained in Annexure A.

S Porter

Commissioner of the Court

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Decision last updated: 31 May 2024