Pearce v Woollahra Municipal Council

[2023] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pearce v Woollahra Municipal Council [2023] NSWLEC 1122

Hearing dates:

Conciliation conference 2, 3 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development consent is granted to Development Application No DA24/2022, as amended, for the demolition of the existing dwelling and construction of a new five storey dwelling with pool and a garage at land identified as Lot A in Deposited Plan 332414, known as 62 Beresford Road NSW 2023, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: Demolition and new residential dwelling – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, Ch 2

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 6.1, 6.2

Texts Cited:

Woollahra Community Participation Plan 2019

Category:

Principal judgment

Parties:

Jonathon Pearce (First Applicant)
Zoe Pearce (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
I Hemmings, SC (First and Second Applicants)
K Mezinec (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/321228

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal bought pursuant to section 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Jonathon Pearce and Zoe Pearce (Applicants) against the actual refusal of a development application by Woollahra Municipal Council (Respondent). The development application seeks consent for the demolition of the existing dwelling and the construction of new five storey dwelling with pool and a garage level (DA). The subject land is Lot A in DP 332414, known as at 62 Beresford Road, Bellevue Hill (Site).

2. A conciliation conference was held between the parties pursuant to section 34AA of the Land and Environment Court Act 1979 (LEC Act) on 2 March 2023. I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans and documents that they considered resolved the contentions before the Court. That agreement is for the grant of the modification application, as amended, subject to conditions.

3. 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 section 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. Owner’s consent has been given to the Applicant for lodgement of the development application,

2. The development application was notified by Woollahra Municipal Council from 9 February 2022 to 24 February 2022 in accordance with section 4 of the Woollahra Community Participation Plan 2019. No submissions were received.

3. As the proposal is for alterations and additions to an existing dwelling house with a total development cost of more than $50,000, pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.

4. Pursuant to section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), prior to the grant of consent I am required to consider whether the land is contaminated. An assessment of the previous use of the Site indicated that the land has only been used for residential purposes. I am satisfied on the basis of the longstanding residential use of the site it is unlikely to be contaminated and is suitable for the proposed use.

5. The site is located in the coastal zone pursuant to chapter 2 of SEPP RH. I accept and I am satisfied on the basis of the assessment in the development assessment report that the development application, as amended, will not have a significant impact on the harbour locality.

6. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 the Site falls within the Sydney Harbour Catchment, shown on the Sydney Harbour Catchment Map 2016. However, as the Site is located outside the Foreshores and Waterways Area there are no specific matters for consideration in determining the development application.

7. The Site is located within the R2 Low Density Residential zone under the Woollahra Local Environmental Plan 2014 (LEP 2014). Development for the purposes of dwelling houses and alterations and additions to existing dwelling houses are permitted with consent in the zone (clause 2.3 of the LEP 2014). In determining the development application, I have given consideration to the objectives of the zone.

8. Clause 4.3 of LEP 2014 prescribes a maximum building height of 9.5m for the Site. The development application as amended complies with that development standard.

9. Clause 6.1 of LEP 2014 relates to development on land identified on the Acid Sulfate Soils Map. The Site is categorised as Class 5 land on the Acid Sulfate Soils Map. The development application is accompanied by ae Geotechnical Desktop Study Report prepared by Douglas Partners dated December 2021. That report concludes that the groundwater table would be well below the proposed excavation level of the site. The parties agree, and I accept, that the subject proposal is unlikely to lower the water table and there is unlikely to be any acid sulfate affectation, and therefore a preliminary assessment is not required.

10. Pursuant to clause 6.2: Earthworks of LEP 2014, the development application proposes earthworks to create the proposed basement car parking level and respond to the topography of the site. The amended development application has reduced the quantum of excavation proposed. As required by clause 6.2: Earthworks of LEP 2014 in determining the development application I have given consideration to the matters listed at subclause (3). In giving consideration to these matters, I have been informed by the Geotechnical Desktop Study Report prepared by the Applicant and the proposed development consent conditions. I am satisfied that none of the factors listed at subclause (3) warrant the refusal of the application.

11. Draft amendments to LEP 2014, and the associated development control plan, relating to proposed floor space ratio and urban greening controls was publicly exhibited from 10 August 2022 to 16 September 2022, and they are therefore a relevant consideration under section 4.15(a)(ii) of the EP&A Act. In determining the development application, I have considered the draft LEP 2014 to the extent that it is of relevance to the development the subject of the development application. None preclude the approval of the development application.

4. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under section 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. 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.

6. The Court notes that Woollahra Municipal Council, as the relevant consent authority, has agreed under clause 55(1) of the EPA Regulation to the applicant amending their development application, and to rely on the amended plans and documents listed below:

1. The following amended architectural plans prepared by Collins and Turner:

Drawing Title	Drawing No.	Revision	Date
Title Sheet	331_DA_000	E	03/03/23
Site Analysis Plan	331_DA_101	E	03/03/23
Site Plan	331_DA_102	E	03/03/23
Garage Level Plan	331_DA_200	H	03/03/23
Pool Level Plan	331_DA_201	G	03/03/23
Mezzanine Level Plan	331_DA_202	G	03/03/23
Lower Ground Level Plan	331_DA_203	G	03/03/23
Ground Level Plan	331_DA_204	G	03/03/23
First Level Plan	331_DA_205	G	03/03/23
Attic Level Plan	331_DA_206	G	03/03/23
Elevations Proposed	331_DA_301	E	03/03/23
Elevations Proposed	331_DA_302	F	03/03/23
Elevations Proposed	331_DA_303	F	03/03/23
Elevations Proposed	331__90	E	03/03/23
Sections Proposed	331_DA_410	J	03/03/23
Sections Proposed	331_DA_411	E	03/03/23
Area Calculations	331_DA_511	H	03/03/23
Schedule of Materials & External Finishes	331_DA_611	G	03/03/23
Photomontage	331_DA_96	D	03/03/23
Photomontage	331_DA_101	C	03/03/23
CAD 3D Massing Study	331_DA_102	C	03/03/23

2. The following amended landscape plans prepared by Dangar Barin Smith:

Drawing Title	Drawing No.	Revision	Date
DA Cover Page	LP01-D7121	G	15/02/23
Garage Level Landscape	LP02-D7121	G	15/02/23
Pool Level Landscape	LP03-D7121	G	15/02/23
Mezzanine Landscape	LP04-D7121	G	15/02/23
Lower Ground Landscape	LP05-D7121	G	15/02/23
Ground Level Landscape	LP06-D7121	G	15/02/23

3. Site Waste Minimisation and Management Plan prepared by Collins and Turner dated 6 February 2023;

4. Cost Report prepared by MBM Pty Ltd dated 9 March 2023;

5. BASIX Certificate No A442137_02 dated 8 March 2023.

Orders

7. The Court orders that:

1. The appeal is upheld

2. Development consent is granted to Development Application No DA24/2022, as amended, for the demolition of the existing dwelling and construction of a new five storey dwelling with pool and a garage at land identified as Lot A in Deposited Plan 332414, known as 62 Beresford Roased NSW 2023, subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 22 March 2023