Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1518

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1518
Hearing dates:	Conciliation conference on 12 September 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition A.3 at Annexure ‘A’. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $25,000.00 within 28 days of these orders. (3) The written request prepared by Mersonn Pty Ltd, dated October 2019, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2012 (“WLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of WLEP has been considered and the necessary state of satisfaction under clause 4.6(4) of WLEP has been met. (4) The appeal in respect of the property known as 164 Victoria Road, Bellevue Hill is upheld. (5) Development Application DA/518/2018 to demolish the existing dwelling and construct a residential flat building with 6 residential units including 2 affordable rental housing units, associated basement parking and associated site works at 164 Victoria Road, Bellevue Hill is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – amended design – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Woollahra Local Environmental Plan 2012
Texts Cited:	Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (2004)
Category:	Principal judgment
Parties:	Parker Logan Property Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) S Puckeridge (Solicitor) (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/22614
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application DA-518/2018. The development application seeks approval for demolition of the existing dwelling and construction of a five storey residential flat building with a proportion of the units allocated to affordable housing. The development is proposed at 164 Victoria Road, Bellevue Hill.

2. On the 27 November 2018, the Applicant lodged a development application with Woollahra Municipal Council. Following the expiration of the deemed refusal period for the application, the Applicant appealed to the Court.

3. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s34 of the Land and Environment Court Act 1979 (LEC Act), which was held on the 12th of September 2019. I presided over the conciliation conference. Through the conciliation process, the parties have agreed an amended design for the proposed works. The agreed orders provide leave to the applicant to rely on this amended material in their development application.

4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

5. As the presiding Commissioner, 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). I have formed this state of satisfaction for the following reasons:

1. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at clause 7 of State Environmental Planning Policy 55 – Remediation of Land, I accept that the likelihood of contamination is low.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 95376M_02 in compliance with the instrument.

3. Pursuant with the provisions of the Woollahra Local Environmental Plan 2014 (WLEP) the site is zoned R3 Medium Density Development. The proposed development, residential flat building, is permissible with consent.

4. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009(SEPP ARH) as in-fill affordable housing. The division applies to the site as the development sought is permissible under WLEP and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH).

5. The subject site meets the definition of ‘accessible area’ on the basis of the site being within 400m of a bus stop with regular services as required by cl 4(1)(a) of SEPP ARH.

6. The consent conditions allocate Units 0.01 and 0.02 for the purposes of affordable housing and require them to be managed by a community housing provider.

7. I am satisfied that the application complies with the standards listed at cl 14 of SEPP ARH.

8. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (2004), to the extent that those provisions are consistent with SEPP ARH.

9. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

10. The application is accompanied by a design verification statement as required by cl 50 of the Environmental Planning and Assessment Regulation 2000.

11. I am satisfied that consent should be granted notwithstanding the contravention of the height standard at cl 4.3 of WLEP. The development standard establishes a maximum height of 10.5m. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of WLEP. The amended development application has a maximum height of 11.36m.

12. The Applicant has filed a written request pursuant to cl 4.6 of WLEP prepared by Mersonn Pty Ltd. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that:

1. The written request demonstrates that compliance with the Height development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the Height standard (cl 4.6(3)(b) of WLEP).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of WLEP are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R3 Medium Density zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

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

13. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 an assessment under s 4.15 of the EPA Act.

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

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition A.3 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $25,000.00 within 28 days of these orders.

3. The written request prepared by Mersonn Pty Ltd, dated October 2019, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2012 (“WLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of WLEP has been considered and the necessary state of satisfaction under clause 4.6(4) of WLEP has been met.

4. The appeal in respect of the property known as 164 Victoria Road, Bellevue Hill is upheld.

5. Development Application DA/518/2018 to demolish the existing dwelling and construct a residential flat building with 6 residential units including 2 affordable rental housing units, associated basement parking and associated site works at 164 Victoria Road, Bellevue Hill is approved subject to the conditions at Annexure “A”.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (707 KB)

Architectural Plans (3.49 MB)

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Amendments

12 November 2019 - Amendment made to [5(12)] references of 'FSR' replaced with corrected height reference.

Decision last updated: 12 November 2019