Oliver-Frost v Woollahra Municipal Council

[2024] NSWLEC 1144

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Oliver-Frost v Woollahra Municipal Council [2024] NSWLEC 1144

Hearing dates:

Conciliation conference on 18 March 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.
(2) Development consent is granted to development application DA552/2022/1 for the demolition of the existing dwelling, and construction of a new dwelling with a basement garage, in-ground pool, rooftop terrace with wading pool and associated landscaping at 37 Fitzwilliam Road, Vaucluse, being the whole of the land in Lots 1 and 2 in Deposited Plan 341240, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – residential property – bulk and scale – desired future character – landscaping – potential view loss – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016, ss 2.10, 2.11

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.10

Land and Environment Court Act 1979, ss 16,17, 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 3, 23, 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 6.6, 6.7, 6.8, 6.9, 6.10, Chs 2, 6, Sch 6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Woollahra Local Environmental Plan 2014, cll 1.8A, 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.9

Woollahra Local Environmental Plan 2014 (Amendment No 33)

Texts Cited:

Woollahra Community Participation Plan 2017

Woollahra Development Control Plan 2014

Category:

Principal judgment

Parties:

Nigel Graham Oliver-Frost (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
Dr S Berveling (Applicant)
S Simington (Solicitor) (Respondent)

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

File Number(s):

2023/267151

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Woollahra Municipal Council’s (Council) refusal of Development Application No. DA552/2022/1 (DA) lodged on 5 December 2022.

2. The Applicant filed proceedings pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and in accordance with the time provisions pursuant to s 8.10(1) of the EPA Act.

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

5. The DA seeks consent for the demolition of the existing dwelling and construction of a new dwelling with a basement garage, in-ground pool, rooftop terrace with a wading pool, and the main living areas being contained in levels 1 and 2 of the proposed dwelling at 37 Fitzwilliam Road, Vaucluse, being the whole of the land in Lots 1 and 2 in Deposited Plan 341240 (Site).

6. The Site is trapezoidal in shape with a frontage to Parsley Road (north-eastern) of 39.33m, a curvilinear side boundary to Fitzwilliam Road (north-western) of 36.19m, a rear (south-western) boundary of 33.995m and a side (south-eastern) boundary of 36.46m. The Site has an area of 1299m².

7. Below is an Aerial Map of the Site, extracted from Council’s Amended Statement of Facts and Contentions filed 27 September 2023 (Amended SOFAC), Figure 1 on p 4, with the Site outlined in red:

8. The Site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (SLEP 2014), as shown in the extract below from Council’s Amended SOFAC, Figure 2 on p 5, with the Site outline in red:

9. To the south-east, the Site immediately adjoins 1A Parsley Road, which is a two-storey dwelling, with garage below together with vehicular access to Parsley Road, and has a pitched tiled roof.

10. To the south-west, the Site adjoins 35 Fitzwilliam Road, which is a part two/part three-storey dwelling with a pitched tiled roof. The dwelling presents as a two-storey building to Fitzwilliam Road.

11. The surrounding area is residential with a mix of detached two and three storey dwellings.

12. The Court arranged a mandatory conciliation conference and hearing under s 34AA of the LEC Act between the parties, which was held on 18 March 2023. I presided over the conciliation conference pursuant to s 34(1) of the LEC Act.

13. The proceedings commenced on site with three objectors making submissions to the Court. The oral submissions were made by two adjoining owners, and a Councillor of the Council who represented objectors generally. I had previously perused the objectors’ written submissions, and on 18 March 2024, listened to their oral submissions.

14. 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 noting Council’s consent to amended plans, upholding the appeal and granting development consent to the DA, subject to conditions of consent pursuant to s 16(1) of the LEC Act.

15. 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 that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied as follows:

1. The DA was lodged with Council on 5 December 2020 in accordance with s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), as the Applicant signed the ‘owner’s consent’.

2. Council initially objected to the Applicant bringing these proceedings as the DA had been lodged by the Applicant’s town planning firm, MHN Design Union. The Applicant made representations to Council that the DA including all the plans and expert reports were made on the Applicant’s behalf. Council withdrew its objection to the owner of the land being the Applicant in these proceedings.

Application of s 4.15(1)(a) of the EPA Act (environmental planning instruments)

Woollahra Local Environmental Plan 2014 (WLEP 2014)

16. WLEP 2014 is the relevant environmental planning instrument that applies to the Site, and relevantly:

1. Development for the purposes of single dwellings is permissible in the R2 zone. Demolition of the existing structures may be carried out with development consent under cl 2.7 of WLEP 2014.

2. Clause 2.3(2) of WLEP 2014 requires the consent authority to have regard to the objectives of Zone R2, and the Court notes that the DA complies with the R2 zone objectives and may approve the DA pursuant to cl 2.3(2) of WLEP 2014.

3. The minimum subdivision size is not a relevant consideration.

4. The DA, as amended, complies with the maximum building height of 9.5m, as provided by cl 4.3 of WLEP 2014.

5. Clause 4.4 - Floor Space Ratio: on 14 July 2023 Council incorporated a change in the FSR development standard by way of Woollahra Local Environmental Plan 2014 (Amendment No 33) (the WLEP Amendment). The parties agree that the DA has the benefit of the savings and transitional provision in cl 1.8A(2) of WLEP 2014 and therefore the WLEP Amendment does not apply to the DA. From 23 May 2015 until the WLEP amendment, Council relied upon a floorplate control in Chapter B3.3 of the Woollahra Development Control Plan 2015 (WDCP 2015). The parties agree that this is not a jurisdictional matter, but also note that the DA complies with the floorplate control in the WDCP.

6. Clause 6.1 - Acid Sulfate Soils: the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage, and cl 6.1 requires development for the carrying out of works on Class 5 land within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. The parties agree that:

1. The Site is located within a Class 5 area, as specified in the Acid Sulfate Soils Map of WLEP 2014; and

2. The subject works are not works within 500m of adjacent Class 1, 2, 3, or 4 land below 5m AHD and by which the water table is likely to be lowered below 1m AHD; and

3. A preliminary assessment is therefore not required.

7. Clause 6.2 - Earthworks: WLEP 2014 requires the consent authority to consider various matters at cl 6.2(3) in deciding whether to grant development consent for earthworks. The relevant matters have been considered by Morrow Geotechnics in its Geotechnical and Hydrogeological Report dated 4 December 2023 in its assessment of the DA, and provides recommendations to ensure that the excavation for the DA is undertaken appropriately. Further:

1. The geotechnical engineering experts who prepared the Joint Expert Report filed 22 February 2024 agree that the amendments to the geotechnical report and the conditions of consent allow for the adequate consideration of those matters at cl 6.2(3) of WLEP 2014.

8. Clause 5.21 - Flood Planning: the Site is not located within an area identified in the Flood Planning Area on the Flood Planning Map in WLEP 2014.

9. Clause 5.10 - Heritage Conservation: the Site does not have a heritage item on it and is not within a heritage conservation area. The Site is located proximate to locally listed heritage items, as listed under Sch 5 of WLEP 2014, but the Council concluded that the DA will not adversely impact the heritage items in the vicinity of the Site.

10. Clause 6.9 - Tree Canopy Cover in Zones R2 and R3: the WLEP Amendment inserted this clause into WLEP 2014. As the savings and transitional clause 1.8(A) applies to this DA, cl 6.9 does not apply. However, the parties agree that there has been an assessment of the arboriculture issues on the Site and a comprehensive landscape plan provided.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

17. RH SEPP is an environmental planning instrument that applies to the Site, and relevantly:

1. Chapter 2 (Coastal Management): gives effect to the Coastal Management Act 2016 from a land use planning perspective by specifying how development proposals are to be assessed if they fall within the Coastal Zone. The Site is located wholly outside the Coastal Environment Area (s 2.10) and the Coastal use Area (s 2.11) of the Coastal Management Act 2016, and therefore Chapter 2 is not applicable to the DA.

2. Chapter 4: s 4.6(1) precludes the granting of development consent unless the consent authority has considered whether the Site is contaminated. The Council considers that s 4.6(1) is not engaged as the Site has been used for residential purposes for a substantial number of years and is unlikely to be contaminated

State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP)

18. SB SEPP is an environmental planning instrument that applies to the Site, and relevantly:

1. The SB SEPP repealed the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), with effect from 1 October 2023. Section 4.2(1)(a) of the SB SEPP provides that it does not apply to a DA submitted but not finally determined before 1 October 2023.

2. The BASIX SEPP was repealed and its provision re-enacted in the SB SEPP without a savings provision. Therefore, in accordance with s 4.2(1)(a) of the SB SEPP, this policy does not apply to the DA as it was submitted and not finally determined before 1 October 2023. Therefore, the BASIX SEPP also does not apply to the DA.

3. In accordance with the definition in s 3 of the EPA Regulation the DA is a BASIX development as it involved the erection of a BASIX building.

4. Section 27 of the EPA Regulation provides that:

1. A development application for BASIX development must be accompanied by:

1. A relevant BASIX certificate;

2. for the development issued no earlier than 3 months before the day on which the development application is submitted to the NSW planning portal; and

3. the other matters required by the BASIX certificate.

2. Pursuant to s 27 of the EPA Regulation, BASIX Certificate No 135884S_04 was prepared for the final plans, and a condition of consent is included which requires compliance with the commitments indicated in the BASIX Certificate in accordance with s 27 of the EPA Regulation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

19. BC SEPP is an environmental planning instrument that applies to the Site, and relevantly:

1. Chapter 2 - Vegetation in non-rural areas: the parties agree that the proposed tree removal and replacement of same, as proposed in the amended landscape plan, satisfied the objectives of this provision, subject to the conditions in Annexure A.

2. Chapter 6 - Water Catchments: the Site is located within the Sydney Harbour Catchment in accordance with the maps associated with the BC SEPP, but it is located outside the Foreshores and Waterways Area identified in the relevant map. However, as the Site is within a regulated catchment within the Sydney Harbour Catchment as defined by Sch 6, the consent authority cannot grant development consent unless it is satisfied as to various matters relating to:

1. Water quality and quantity;

2. Aquatic ecology;

3. Flooding;

4. Recreation and public access; and

5. Total catchment management.

3. The parties agree that the Court can be satisfied that:

1. The stormwater plans for the proposed development ensure that:

1. The effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and,

2. The impact on water flow in a natural waterbody will be minimised (s 6.6(2) of the BC SEPP).

2. The proposed development:

1. Keeps to a minimum any direct, indirect or cumulative adverse impacts on terrestrial, aquatic or migratory animals or vegetation;

2. Will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. Minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody,

4. Minimises any adverse impact on wetlands (s 6.7 BC SEPP).

3. The proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8 BC SEPP);

4. The proposed development does not affect public access to and from natural waterbodies (s 6.9 BC SEPP); and

5. The proposed development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10 BC SEPP).

Remaining matters in s 4.15(1) of the EPA Act

20. The impact of the DA in respect of environmental impacts on both the natural and built environment and the social and economic impacts of the locality have been considered and are acceptable (s 4.15(1)(b)).

21. The Site is suitable for the development taking into consideration the relevant environmental planning instruments and permissible uses in the R2 zone (s 4.15(1)(c)).

22. The DA has been properly notified in accordance with Council’s Woollahra Community Participation Plan 2017 (s 4.15(d)).

23. Consideration has been given to the public interest (s 4.15(e)). A total of 13 submissions were received from the public. I have perused those written submissions.

24. The conditions of consent sought by the Council are agreed to by the Applicant. The conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

25. The following amended plans were before the conciliation conference, and the Council approved the amended plans on 18 March 2024:

DOCUMENT	AUTHOR	DATE
Architectural Plans
DA-03 Site and Roof Plan, Rev. F DA-04 Basement Floor Plan, Rev. F DA-05 Ground Floor Plan, Rev. F DA-06 First Floor Plan, Rev. F DA-07 Second Floor Plan, Rev. F DA-08 Sections, Rev. F DA-09 Privacy Sections, Rev. F DA-10 Elevations, Rev. F DA-11 Elevations, Rev. F DA-13 Compliance Diagrams – Controls Summary, Rev. F DA-25 Pool Sections F & G, Rev. F	MHN Design Union Pty Ltd	11 March 2024
Landscape Plans
L-01 Site Plans/Calcs, Issue G L-02, Detailed Plan, Issue G L-03 2nd Floor Plan, Issue G L-04 Notes & Specification, Issue G	Site Design + Studios	14 February 2024
Stormwater Management Plans
SW001 Cover Page, Notes & Calculations Sheet, Issue C SW002 Cover page, Notes & Calculations Sheet, Issue C SW100 Ground Stormwater Management Plan, Issue C SW101 Basement Stormwater Management Plan, Issue C SW102 Level 1, Level 2 & Roof Stormwater, Issue C SW103 Drainage Pipeline Extension Plan, Issue C SW200 Stormwater Drainage Details Sheet 1 of 3, Issue C SW201 Stormwater Drainage Details Sheet 2 of 3, Issue C SW202 Stormwater Drainage Details Sheet 3 of 3, Issue C SW203 New Pipeline Longitudinal Section, Issue C	RTS	29 November 2023
View Impact Analysis
Vantage Point for 35 Fitzwilliam Road, Issue B	AE Design Partnership Pty Ltd	Undated

26. For the reasons set out in par [15]-[25] 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.

27. I am not required, and I have not, considered the merit issues of the DA. I note that the Council is satisfied that the objectors’ concerns have been resolved in relation to front set-back, and the privacy issues for 1A Parsley Road and 37 Fitzwilliam Road.

28. 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.

29. The Court notes:

1. Woollahra Municipal Council, as the relevant consent authority, pursuant so s 38(1) of the Environmental Planning and Assessment Regulation 2021, on 8 March 2024, approved the application for amendments to development application DA 552/2022/1 to rely on the documents and plans specified in the schedule below, and those amended plans and documents were filed on 8 March 2024 (the amended development application):

DOCUMENT	AUTHOR	DATE
Architectural Plans
DA-03 Site and Roof Plan, Rev. F DA-04 Basement Floor Plan, Rev. F DA-05 Ground Floor Plan, Rev. F DA-06 First Floor Plan, Rev. F DA-07 Second Floor Plan, Rev. F DA-08 Sections, Rev. F DA-09 Privacy Sections, Rev. F DA-10 Elevations, Rev. F DA-11 Elevations, Rev. F DA-13 Compliance Diagrams – Controls Summary, Rev. F DA-25 Pool Sections F & G, Rev. F	MHN Design Union Pty Ltd	11 March 2024
Landscape Plans
L-01 Site Plans/Calcs, Issue G L-02, Detailed Plan, Issue G L-03 2nd Floor Plan, Issue G L-04 Notes & Specification, Issue G	Site Design + Studios	14 February 2024
Stormwater Management Plans
SW001 Cover Page, Notes & Calculations Sheet, Issue C SW002 Cover page, Notes & Calculations Sheet, Issue C SW100 Ground Stormwater Management Plan, Issue C SW101 Basement Stormwater Management Plan, Issue C SW102 Level 1, Level 2 & Roof Stormwater, Issue C SW103 Drainage Pipeline Extension Plan, Issue C SW200 Stormwater Drainage Details Sheet 1 of 3, Issue C SW201 Stormwater Drainage Details Sheet 2 of 3, Issue C SW202 Stormwater Drainage Details Sheet 3 of 3, Issue C SW203 New Pipeline Longitudinal Section, Issue C	RTS	29 November 2023
View Impact Analysis
Vantage Point for 35 Fitzwilliam Road, Issue B	AE Design Partnership Pty Ltd	Undated

30. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA552/2022/1 for the demolition of the existing dwelling, and construction of a new dwelling with a basement garage, in-ground pool, rooftop terrace with wading pool and associated landscaping at 37 Fitzwilliam Road, Vaucluse, being the whole of the land in Lots 1 and 2 in Deposited Plan 341240, subject to conditions in Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (701479, pdf)

**********

Amendments

09 May 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), a correction is made to Order (2) and paragraph 29 of the judgment to amend the DA number.

Decision last updated: 09 May 2024