Rourke v Woollahra Municipal Council

[2024] NSWLEC 1134

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rourke v Woollahra Municipal Council [2024] NSWLEC 1134

Hearing dates:

Conciliation conference on 11 March 2023

Date of orders:

20 March 2024

Decision date:

20 March 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification Application DA223/12/2 is approved and development Consent No DA223/12/1 is modified in the terms in Annexure A.

(3) Development Consent No DA223/12/2 as modified by the Court is set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – conversion of non-trafficable green roof to trafficable – heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.15, 4.55, 4.56

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 s 113

Woollahra Local Environmental Plan 2014 cll 4.3, 5.10, 5.21, 6.1, 6.2

Category:

Principal judgment

Parties:

Ashley Rourke (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
P Rigg (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2023/258965

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Woollahra Municipal Council, of the Applicant’s request to modify a development consent, DA223/12/1 at 102 Hargrave Street, Paddington, NSW, Lot D in DP 33657. The application requested the conversion of an approved non-trafficable green roof to a trafficable green roof, construction of a new fence to the side and rear of the roof and new tiling to the front entrance of the dwelling.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

7. Pursuant to s 4.56(1) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note:

• The development modifies the use of an existing green roof above a garage, to provide private open space that is consistent with the alterations and additions approved in the original consent. The addition of balustrades is a minor alteration to the current green roof design which otherwise remains relatively unchanged.

• The development seeks to amend some tiles in front of the building, for which development consent is required as the subject site is located within the Paddington Heritage Conservation Area (HCA).

8. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted.

9. The modification application was notified from 31 May to 15 June 2023 in accordance with Council’s Community Participation Plan. Two submissions were received, and both objectors gave oral submissions at the commencement of these proceedings. The parties submit, and I accept that issues raised in these submissions have been adequately considered in the assessment of this application and in the amendments made as part of this conciliation process.

10. Having regard to the Woollahra Local Environmental Plan 2014 (WLEP), the parties submit, and I accept that the amendments do not result in any exceedance of the permissible height control (cl 4.3), do not result in any works that impact Acid Sulfate Soils (cl 6.1), do not result in any earthworks (cl 6.2) or impact flood planning (cl 5.21). Further, the site is zoned R2 Low Density Residential within which development for the purposes of a dwelling house are permissible with consent. All proposed works are ancillary to a dwelling house, and the parties submit, and I accept that the proposed development as modified meets the objectives of the zone.

11. As the property is located within a HCA, I must consider the effect of the proposed development on the heritage significance of the conservation area under WLEP cl 5.10. From the site view and the submissions of the parties I accept that the proposed fence has been designed to minimise impacts on the heritage setting in the laneway, and that this, combined with the other works requested in this application, will maintain the heritage significance of the HCA.

12. Finally, based on the information contained in the Statement of Environmental Effects, the amended plans and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(2) and that all jurisdictional prerequisites have been met.

13. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

14. 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.

15. The Court notes:

1. Woollahra Municipal Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application DA223/12/2 to rely upon the amended architectural and documents as set out the table below.

Reference	Description	Author/Drawn	Date(s)
S4.55/01 A	Site Plan & Materials Schedule	Zoltan Kovacs Architect	02/2024
S4.55/02 A	Lower Ground Floor Plan
S4.55/03 A	Long Section & Sightline Section
S4.55/04 A	East Elevation
S4.55/05 A	West Elevation
S4.55/06 A	Rear (Hargrave Lane) Elevation

2. The Applicant filed the amended modification application with the Court on 11 March 2024

16. The Court orders:

1. The appeal is upheld.

2. Modification Application DA223/12/2 is approved and development Consent No DA223/12/1 is modified in the terms in Annexure A.

3. Development Consent No DA223/12/2 as modified by the Court is set out in Annexure B.

E Washington

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 20 March 2024