Reed v Woollahra Municipal Council

[2023] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reed v Woollahra Municipal Council [2023] NSWLEC 1258

Hearing dates:

Conciliation conference 12 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 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 DA520/2021/1 as amended, for partial demolition and alterations and additions to the existing house, new swimming pool and landscaping works on the land legally described as Lot 5, Section 5 in DP 58040 and Lot 6 in DP499728 also known as 14 Pacific Street, Watsons Bay, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and alterations and additions to an existing dwelling – locally listed heritage item – amended plans – conciliation agreement – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.9

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 10.2, 10.10, 10.11, 10.12

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

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

Woollahra Local Environmental Plan 2014, Sch 5, cll 2.7, 4.3, 6.1, 6.2, 6.4

Cases Cited:

CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97

Category:

Principal judgment

Parties:

Genevieve Reed (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/00301932

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal is brought by Ms Reed (the Applicant) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application DA520/2021/1 (the DA) by Woollahra Municipal Council. The DA seeks consent for partial demolition and alterations and additions to an existing dwelling, new swimming pool and landscape works on the land described as Lot 5 Section 5 in DP 58040 and Lot 6 in DP 499728, known as 14 Pacific Street, Watson Bay (the Site). The Site is listed as a local heritage item in Sch 5 of the Woollahra Local Environmental Plan 2014 (WLEP) and is within the Watsons Bay Heritage Conservation Area (HCA).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 12 May 2023. I presided over the conciliation conference. Prior to 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 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 s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The DA in its original and amended form was notified by Woollahra Municipal Council from 1 December to 16 December 2021 and from 22 February 2023 to 9 March 2023. A number of the amendments to the DA are responsive to these submissions. In determining the DA, I have given consideration to these submissions and the public interest.

2. Pursuant to s 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. The Statement of Environmental Effects notes that the Site has only been used for residential purposes. The physical works proposed as part of this application do not include significant excavation or earthworks. 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.

3. Pursuant to SEPP RH, the Site is identified as being with the Coastal Use Area and Coastal Environment Area. However, ss 2.10 and 2.11 are excluded from operation as the Site is also within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6: see s 2.10(3) and s 2.11 (2).

4. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) and the Environmental Planning and Assessment Regulation 2000, the development is BASIX affected development. The DA is accompanied by the required BASIX certificate.

5. The Site is located within the Sydney Harbour Catchment as determined by s 10.2(2)(a) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The Site is also within the Foreshores and Waterways Area pursuant to s 10.2(2)(a). The parties agree that the DA has not been finally determined before the making of State Environmental Planning Policy Amendment (Water Catchments) 2022, noting the decision in CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97. In determining the DA, I have considered the planning principles in ss 10.10, 10.11 and 10.12 of the BC SEPP, none warrant the refusal of the application.

6. The DA includes consent for the removal six trees. In determining the DA, I have taken into consideration the aims and objectives of Ch 2 of the BC SEPP and I accept the agreement of the parties that the objectives and relevant provisions of Ch 2 of the BC SEPP have been considered and are satisfied by the DA.

7. The Site is zoned R2 Low Density Residential pursuant to WLEP. Development for the purpose of residential dwelling is permitted with consent in the zone. In determining the DA, I have given consideration to the objectives of the R2 Low Density Residential zone. Further, demolition is permitted with consent pursuant to cl 2.7 of WLEP.

8. Pursuant to cl 4.3 of WLEP, the maximum permitted height for building on the site is 8.2 metres. The existing, retained and unaltered positions of the building form on the Site exceed the height limit by some 0.75m. The proposed alterations and additions, for which consent is sought, are under the permissible height limit and therefore compliant.

9. The subject site is a locally heritage listed item in the WLEP being known as Item 455, ‘Boongaree’. The Site is also located within the HCA. A Heritage Impact Statement was prepared by Zoltan Kovacs, Architect to support the DA. A report in respect of Aboriginal heritage has been prepared in accordance with the Council’s policies which provides recommendations in respect of the finding of Aboriginal artefacts which have been incorporated into the annexed conditions. In determining the DA, I have given consideration to the effect of the proposed development on both the significance of the item and the HCA. I am satisfied any impact on significance is insufficient to warrant refusal of consent.

10. Pursuant to cl 6.1 Acid Sulfate Soils in WLEP, the Site is mapped within Class 5. The Applicant submitted a Preliminary Acid Sulfate Soils Assessment Report prepared by Geo-Environmental Engineering dated 5 December 2022. The report concludes that an Acid Sulfate Soil Management Plan is not required and, on this basis, pursuant to cl 6.1(4), the issues in this clause are satisfied. I accept the requirements of cl 6.1 in WLEP are met.

11. Clause 6.2 Earthworks in WLEP applies to the DA. The Applicant provided a Geotechnical Investigation Report, prepared by JK Geotechnics, dated November 2021 as part of their application. During the proceedings, the DA has been amended to remove the excavated basement and on this basis the extent of earthworks proposed is minimal and greatly reduced in comparison to the works addressed by the Geotechnical Investigation Report. I am satisfied that the matters set out in cl 6.2(3) of WLEP have been considered and are satisfactorily addressed by the DA and agreed conditions of consent.

12. The DA includes proposed waterfront structures which encroach within the 12 metres foreshore building line ('foreshore area 12') as mapped in the WLEP. I am satisfied, pursuant to cl 6.4(2) of WLEP, that the works are permitted as they fall within the purpose listed at subcll (a) and (b). Further, I am satisfied that the works proposed under the DA comply with the requirements of subcll 6.4(4)(a) through (g). In determining the DA, I have considered the provisions of cl 6.4(5) to the extent that they are relevant to the DA.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that:

1. Woollahra Municipal Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application DA520/2021/1 in accordance with the following amended plans and documents:

1. Amended architectural plans by Tobias Partners:

Drawing Title	Drawing No.	Revision	Date
Boatshed & Plant Pool Room Plan Pool + Terrace Plan Ground Floor Plan (Entry) Level 1 Plan (Bedrooms) Level 2 Plan (Roof) North & South Elevations East & West Elevations Section AA – BB Section CC Materials & Finishes Schedule	S26 1.001 S26 1.002 S26 1.003 S261.004 S26 1.005 S26 2.001 S26 2.002 S26 2.101 S26 2.102 S26 9.301	Rev. E Rev. E Rev. E Rev. E Rev. E Rev. E Rev. E Rev. E Rev. E Rev. E	07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023 07/02/2023

2. Amended Landscape plans prepared by 360 Degrees Landscape Architects Pty Ltd:

Drawing Title	Drawing No.	Revision	Date
Cover Page and Drawing Schedule Landscape Schedule and Notes Tree Protection and Removal Plan Landscape Plan Landscape Areas Plan Planting Palette	L-DA-00 L-DA-01 L-DA-02 L-DA-03 L-DA-04 L-DA-05	Rev. J Rev. J Rev. J Rev. J Rev. J Rev. J	09/02/2023 09/02/2023 09/02/2023 09/02/2023 09/02/2023 09/02/2023

3. BASIX Certificate prepared by Efficient Living Pty Ltd and dated 13 February 2023;

4. Acid Sulfate Soil Assessment prepared by Geo-Environmental Engineering and dated 5 December 2022;

5. Construction Impact Assessment and Management Plan (Brush Box Fence) prepared by George Palmer, Botanics Pty Ltd and dated February 2023;

6. View Loss Assessment prepared by GSA Planning and dated 10 February 2023.

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA520/2021/1 as amended, for partial demolition and alterations and additions to the existing house, new swimming pool and landscaping works on the land legally described as Lot 5, Section 5 in DP 58040 and Lot 6 in DP499728 also known as 14 Pacific Street, Watsons Bay, subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

22.301932 Annexure A (770481, pdf)

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Decision last updated: 31 May 2023