Reynolds v Woollahra Municipal Council

[2020] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reynolds v Woollahra Municipal Council [2020] NSWLEC 1429

Hearing dates:

Conciliation conference on 11 September 2020

Date of orders:

16 September 2020

Decision date:

16 September 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to amend their application and rely on the following documents:

(a) No.76 New Beach Road Darling Point NSW – Swimming Pool – Hydrogeological Assessment prepared by Aargus (Ref GS6645-6A) dated 28 June 2020; and

(b) Construction Methodology and Structural Statement prepared by Fred Barros Engineering dated 7 July 2020.

(2) The appeal is upheld.

(3) Approval is granted to Development Application DA185/2019 for a new swimming pool at 76 New Beach Road, Darling Point, NSW subject to the consolidated, modified conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conditions relating to tree removal and geotechnical – existing consent for a swimming pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Woollahra Local Environmental Plan 2014

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Anthony John Reynolds (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
T Ward (Solicitor) (Applicant)
B Mainhoff (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/28227

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the imposition of conditions which specifically relate to the protection of a tree (cabbage tree palm) and geotechnical assessments in the consent of Development Application (DA) 185/2019 granted by Woollahra Municipal Council (hereafter the Council) on Lot 9 DP 8336, also known as 76 New Beach Road, Darling Point (hereafter the site).

2. The DA which is the subject of these proceedings was lodged with the Council on 24 May 2019 and following notification, was approved with conditions on 14 November 2019. Following notification, one submission in objection was received by Council.

3. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), lodged with the Court on 28 January 2020. The appeal relates to the imposition of the following conditions as identified in consent of the DA: A.4; B.2; C.1; C.5A; C.5B; C.5C; C.10; C.11; C.12; C.13; D.2; E.8; E.27; E.28; and E.29.

4. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which commenced in Court on 11 September 2020. I presided over the conciliation conference. There were no objectors heard at this conciliation.

5. Prior to this conciliation conference, the applicant sought to amend the DA’s supporting documents to be relied upon in the granting of consent to the DA under appeal. Leave is granted to rely on these documents.

6. Based on these amended supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objector have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 185/2019 with conditions as modified.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its power under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1), to grant consent to DA 185/2019 with conditions, as modified and described in Annexure A.

8. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP Vegetation); Woollahra Local Environmental Plan 2014 (WLEP); and Woollahra Development Control Plan 2015 (WDCP).

9. The parties agree that the relevant provisions of the SEPP Vegetation are addressed to their satisfaction by the supporting documents and conditions of consent to the DA under this appeal. Therefore, the contentions that relate to cll 7(1), 8(3), 9 and 26 of the SEPP Vegetation are resolved.

10. The parties agree that the relevant provisions of the WLEP are addressed to their satisfaction by the supporting documents, conditions of consent and expert advice to the DA under this appeal. The relevant contentions are resolved.

11. The parties agree that the requirements of the WDCP are complied with, based on the amended documents and conditions of consent. The proposed development was publicly notified in accordance with the WDCP and the submissions received by Council have been considered. Based on the amended supporting documents to the DA, the contentions that relate to the controls specified in the WDCP and issues raised by the objector are addressed to the satisfaction of the parties.

12. The parties agree that the provision of the additional information to support the DA addresses the conditions under contention, thereby resulting in these conditions to be either deleted or modified by agreement.

13. Based on the amended supporting documents to the DA, the contentions as expressed by Council, the request to amend the specified conditions, are explained to the Court as being resolved to the satisfaction of the parties.

14. The parties advise the Court that there are no jurisdictional impediments to this agreement and that the conditions which are the subject of appeal should be amended or deleted as described in Appendix A of the consent, because it satisfies the considerations of s 4.15(1) of the EPA Act.

15. 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.

16. The Court orders that:

1. Leave is granted to the Applicant to amend their application and rely on the following documents:

1. No.76 New Beach Road Darling Point NSW – Swimming Pool – Hydrogeological Assessment prepared by Aargus (Ref GS6645-6A) dated 28 June 2020; and

2. Construction Methodology and Structural Statement prepared by Fred Barros Engineering dated 7 July 2020.

2. The appeal is upheld.

3. Approval is granted to Development Application DA185/2019 for a new swimming pool at 76 New Beach Road, Darling Point, NSW subject to the consolidated, modified conditions of consent in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (513104, pdf)

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Decision last updated: 16 September 2020