Prominent Ventures Pty Ltd v Woollahra Municipal Council

[2022] NSWLEC 1709

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prominent Ventures Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1709

Hearing dates:

Conciliation conference on 29 November 2022, final agreement filed on 15 November 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend DA143/2020 and rely on the amended plans and documents listed at condition A.8 of Annexure A.

(2) The appeal is upheld.

(3) Development Consent DA143/2020 is modified in the terms set out at Annexure A.

(4) Development Consent DA143/2020 as modified by the Court is set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – multi-dwelling housing development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 10.10

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

Woollahra Local Environmental Plan 2014, cll 4.4, 5.10, 6.1, 6.2

Category:

Principal judgment

Parties:

Prominent Ventures Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/198480

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal concerns a Modification Application (the MA) seeking to modify the parent Development Consent DA143/2020 (the DA), which granted consent for the demolition of the existing dwelling and construction of a new, two-storey multi-dwelling housing development with basement car parking, a swimming pool and associated landscaping works at 40 Glendon Road, Double Bay (the site).

2. Consent for this parent DA was granted by the Court on 6 December 2021. The MA was lodged with the Court on 7 July 2022 pursuant to s 4.55(8) of the EPA Act.

3. The MA seeks approval for the following modifications:

1. Relocation of the laundries to Houses 1 and 2 from the ground level to the garage level. Minor internal reconfiguration to Houses 1 and 2. Repositioning of the fireplaces to Houses 1 and 2.

2. Repositioning of the exhaust to the northern elevation.

3. Enclosure of the entry to House 3 to allow for the toilet to be repositioned. Reconfiguration of the internal layout to House 3, including the provision of an enlarged butler’s pantry. Enlargement of the door openings to the rear elevation of House 3 and deletion of the fireplace.

4. Widening of the rear terraces and the provision of sliding privacy screens to Houses 1 and 2.

5. Reconfiguration of the rear terrace and external stairs to House 3, including a sliding privacy screen proposed to be erected to the rear. The swimming pool and the adjacent terrace level is to be raised by 820mm from RL3.7 to RL4.52. The length of the swimming pool is to be reduced.

6. Enclosure of the front and rear balcony to House 1 and reconfiguration of the internal layout and fenestration to accommodate this new layout.

7. Enclosure of the rear balcony to House 2 and reconfiguration of the internal layout and fenestration to accommodate this new layout.

8. Enclosure of the southern side balcony to House 3 and reconfiguration of the internal layout and fenestration to accommodate this new layout.

9. New Juliet balconies to the rear elevations of Houses 1, 2 and 3.

10. Modification of the roof profile with the overall ridge height remaining unchanged. The position, shape and size of skylights to Houses 1, 2 and 3 have been modified to accommodate the changes to the internal layout.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 November 2022. I presided over the conciliation conference.

5. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions.

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. The parties' decision involves the Court exercising the function under s 4.55(8) of the EPA Act to modify the existing DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the MA has been made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.

9. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, number of dwellings, the general appearance of the building continues to read as three townhouses.

10. The parties agree, and I am satisfied, that the MA was notified in accordance with the Respondent’s Community Participation Plan. The MA was notified between 17 August and 1 September 2022.

11. The Respondent received no submissions in response to this notification period.

12. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as multi-unit residential housing development - is permissible with consent, and that the MA maintains the objectives of the R3 zone.

13. The parties agree, and I am satisfied, that all principal development standards of the WLEP are maintained by the MA with the exception of the cl 4.4, Floor Space Ratio (FSR).

14. In this instance, the relevant FSR development standard for the site is 0.65:1. The final amended MA results in a total FSR of 0.72:1 (increasing from the parent DA, which granted consent to an FSR of 0.63:1). The increase in FSR is attributable to the series of relatively minor amendments to the building envelope, and in part arises from internal reconfiguration of the building form and the enclosure of balconies. The parties agree, and I am satisfied, that the exceedance of the FSR reflected in the MA is acceptable.

15. The parties agree, and I am satisfied, that pursuant to cl 5.10, Heritage conservation, of the WLEP, the MA maintains the parent DA’s consistency with the terms of cl 5.10. The existing building on the site is not a heritage item and the site is not located within a heritage conservation area. There are no heritage items within the immediate vicinity of the site.

16. The parties agree, and I am satisfied, that pursuant to cl 6.1, Acid sulfate soils, of the WLEP, the MA remains consistent with the parent DA and raises no further considerations under the terms of cl 6.1.

17. The parties agree, and I am satisfied, that pursuant to cl 6.2, Earthworks, of the WLEP, the MA proposes no further earthworks and remains consistent with the existing DA consent, maintaining the objectives of cl 6.2.

18. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination and that no change of use is proposed. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended MA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.

19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) is an additional relevant environmental planning instrument. The parties agree the MA and resultant building form are unlikely to be visible from the waterways and foreshores of Sydney Harbour satisfying s 10.10 of SEPP Biodiversity.

20. The parties agree, and I am satisfied, that the MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A revised BASIX certificate, dated 11 October 2022, has been submitted with the amended MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

21. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

22. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the agreement of the Respondent.

2. The Applicant has filed the amended MA with the Court on 9 and 29 November 2022.

Orders

23. The Court orders that:

1. Leave is granted to the Applicant to amend DA143/2020 and rely on the amended plans and documents listed at condition A.8 of Annexure A.

2. The appeal is upheld.

3. Development Consent DA143/2020 is modified in the terms set out at Annexure A.

4. Development Consent DA143/2020 as modified by the Court is set out at Annexure B.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (171733, pdf)

Annexure B (874361, pdf)

Architectural Drawings (2065179, pdf)

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Decision last updated: 16 December 2022