Riddell Street Development Pty Ltd v Woollahra Municipal Council
[2020] NSWLEC 1017
•16 January 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Riddell Street Development Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1017 Hearing dates: Conciliation conference on 11 October 2019 Date of orders: 16 January 2020 Decision date: 16 January 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders that:
(1) Leave is granted to the Applicant to rely on the amended architectural and landscape plans set out in condition A3 of Annexure A.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No. DA 487/2018 for the demolition of two existing dwellings and construction of a new residential flat building with basement parking on Lot 1 in DP 658568 and Lot 2 in DP 6028, known as 21-23 Riddell Street, Bellevue Hill subject to the conditions of consent in Annexure A.Catchwords: DEVELOPMENT APPLICATION – demolition of two dwellings and construction of a residential flat building – 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 (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Woollahra Local Environmental Plan 2014Category: Principal judgment Parties: Riddell Street Developments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Solicitors:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)
Jaku Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2019/153362 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 487/2018) for the demolition of two existing dwellings and construction of a new residential flat building with basement parking at Lot 1 Deposited Plan 658568 and Lot 2 Deposited Plan 6028 known as 21-23 Riddell Street, Bellevue Hill (the site).
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On 11 October 2019, I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).
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At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. After a number of adjournments, the parties on 11 December 2019 filed an agreement pursuant to s 34(3) giving effect to the agreement on principle. The proposed decision was to grant leave to rely on amended plans, uphold the appeal and grant development consent to the development application subject to conditions.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.
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The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The following jurisdictional prerequisites relevant in this case have been satisfied so this function can be exercised:
The site is zoned R3 pursuant to Woollahra Local Environmental Plan 2014 (WLEP 2014) pursuant to which residential flat buildings are a permissible use;
Although prior to amendment the proposed development did contravene development standards in the WLEP 2014, following amendment there is no longer any contravention of any development standard;
Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated;
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. BASIX certificate number 96733M has been provided in compliance with that Policy.
Consideration has been given as to whether the design of the proposed development complies with the Design Principles of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, on the basis of the content of the Statement of Environmental Effects lodged with the Class 1 Application, the Design Verification Statement and the amendments made to the design;
The parties have agreed, and I concur, that the amendments to the architectural plans are minor for the purpose of s 8.15(3) of the EPA Act.
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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.
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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.
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The Court orders that:
Leave is granted to the Applicant to rely on the amended architectural and landscape plans set out in condition A3 of Annexure A.
The appeal is upheld.
Development consent is granted to Development Application No. DA 487/2018 for the demolition of two existing dwellings and construction of a new residential flat building with basement parking on Lot 1 in DP 658568 and Lot 2 in DP 6028, known as 21-23 Riddell Street, Bellevue Hill subject to the conditions of consent in Annexure A.
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P Clay
Acting Commissioner of the Court
Annexure A (494 KB, pdf)
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Decision last updated: 17 January 2020
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