Sanchez v Woollahra Municipal Council

[2022] NSWLEC 1636

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sanchez v Woollahra Municipal Council [2022] NSWLEC 1636

Hearing dates:

8 November 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA616/2021/1, as amended, for extensive alterations and additions to the existing dwelling at 28 Beresford Road, Rose Bay, is determined by way of granting development consent, subject to conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environment Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2. cl 4.6

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 5.10, 5.21, 6.1, 6.2

Texts Cited:

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Kate Alison Sanchez (First Applicant)
Christian Michael Sanchez (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor)(Applicants)
S Puckeridge (Solicitor)(Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/249099

Publication restriction:

No

Judgment

1. COMMISSIONER: Kate Alison Sanchez and Christian Michael Sanchez (the Applicants) have appealed the refusal by Woollahra Municipal Council (the Respondent) of their Development Application No. DA616/2021/1, lodged with owners’ consent on 23 December 2021 seeking consent for extensive alterations and additions to an existing dwelling (the Proposed Development) at Lot 4 DP 212629, known as 28 Beresford Road, Rose Bay (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was notified in accordance 26 January and 10 February 2022, and then an amended application was notified between 11 April and 24 April 2022. Ten submissions were received in response to that notification.

4. On 8 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy. A site inspection was undertaken prior to the conciliation conference being convened, and one objector made a submission during the site view stating concerns in relation to privacy and overlooking, the design of proposed landscape treatments to a side passage over which a right of way in favour of the objector’s property is in place, as well as concerns in relation to the bulk and scale of the Proposed Development, related solar access matters, and proximity of proposed works to the southern side boundary of the Subject Site.

6. At the conciliation conference following the site view, the Parties reached an 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 granting consent to the Applicants’ development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. the Subject Site is zoned R2 Low Density Residential under the provisions cl 2.3 of Woollahra Local Environmental Plan 2014 (WLEP), and:

1. development for the purposes of dwellings is permissible under the R2 zoning of the Subject Site; and

2. the Parties agree, and I am satisfied, that the Applicants’ Proposed Development is consistent with the objectives of the R2 zone to which regard must be had in determining the Applicant’s development application;

2. in relation to the further provisions of WLEP:

1. the provisions of cl 4.3 of WLEP prescribes a maximum building height of 9.5m for development on the Subject Site and the Proposed Development, as amended, complies with this standard having a maximum building height of 9.37m;

2. the Subject Site is not subject to any floor space ratio development standard under the provisions of WLEP;

3. the existing building on the Subject Site is not a heritage item nor is it located within a heritage conservation area, and there are no heritage items in the vicinity of the Subject Site. The closest heritage item to the Subject Site is approximately 30m to the southwest, called “Allala” (house and interiors, gateposts, gate) at 26 Cranbrook Road, and which is item 20 in Part 1 of Schedule 5 of the WLEP. Notwithstanding this, the Parties advise, and I am satisfied, that the provisions of cl 5.10 of WLEP is not engaged by the Proposed Development;

4. the provisions of cl 5.21 of WLEP are also not engaged by the Proposed Development as the Subject Site is not located within a flood planning area;

5. the front-eastern part of the Subject Site located closest to Beresford Road is identified as being affected by Class 4 acid sulfate soils and the remainder of the site is identified as being affected by Class 5 acid sulfate soils, and in relation to this:

1. if development consent for the carrying out of works is required under cl 6.1(2), then development consent must not be granted unless an acid sulfate soils management plan has been prepared for the proposed works;

2. however, pursuant to cl 6.1(4)(a) of WLEP, development consent is not required if a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works; and

3. an acid sulfate soils and hydrogeological assessment prepared by Martens Consulting Engineers was submitted with the Applicants’ development application. The Respondent has confirmed, and I am satisfied, that on the basis of that assessment an acid sulfate soils management plan is not required in relation to the Applicants’ proposed works and the provisions of cl 6.1 of WLEP have been addressed;

6. the provisions of cl 6.2 of WLEP require consent for the earthworks proposed under the Applicants’ development application, and in relation to any consent, the consent authority, or the Court on appeal, must consider the matters at cl 6.2(3) in deciding whether to grant consent, and in relation to that:

1. the Applicants have provided a geotechnical assessment report prepared by Geotechnical Consultants Australia dated 10 October 2022 along with a letter regarding geotechnical impacts prepared by JK Geotechnics; and.

2. on the basis of the information provided by the Applicants, the Parties have agreed specific conditions of consent (conditions C.6 – C.11) that are to be imposed with any grant of consent to regulate the Applicants’ proposed excavation; and

3. the Parties agree, and I am satisfied, that the requisite matters to be considered under the provisions of cl 6.2 of WLEP with respect to earthworks have been considered;

3. in relation the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the Parties advise, and I am satisfied, that:

1. the historical use of the Subject Site since its original subdivision in 1943 has been for residential purposes; and

2. there is no evidence of any potentially contaminating use of the site since that time and the Subject Site is unlikely to be contaminated;

3. on the basis of the above the provisions of cl 4.6 of SEPP R&H are satisfied;

4. in relation to the provisions of Chapter 2 of SEPP R&H, the Subject Site is not identified as a ‘coastal use area’, a ‘coastal vulnerability area’ or ‘coastal wetlands and littoral rainforest area’ and so the provisions of Chapter 2 are not engaged by the Proposed Development in these circumstances;

5. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Parties have advised, and I am satisfied, that:

1. the Applicant has provided BASIX Certificate no. A441591 dated 14 December 2021 which remains applicable to the Applicants’ amended application in satisfaction of the provisions of SEPP Basix; and’

2. the Parties have agreed that condition H.1 should be imposed with any grant of consent to the Proposed Development and this condition requires compliance with the Applicants’ issued BASIX Certificate;

6. the Parties have confirmed that the relevant provisions of Woollahra Development Control Plan 2015 (WDCP) have been considered in relation to the Proposed Development, and I am satisfied that:

1. the Proposed Development either meets the relevant controls within WDCP or it achieves the objectives of those controls such that it represents a reasonable alternative meriting flexibility in their application;

2. there is no provision of WDCP that would form a basis for refusal of the Proposed Development;

7. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. The Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that:

1. Woollahra Municipal Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA616/2021/1 in accordance with the following amended architectural plans:

Drawing No.	Drawing Name	Issue	Date
A001	COVER PAGE	F	13.10.2022
A002	LOWER FLOOR – DEMOLITION	F	13.10.2022
A003	GROUND FLOOR – DEMOLITION	E	13.10.2022
A004	SITE ANALYSIS	E	13.10.2022
A005	SITE PLAN – LOWER GROUND	F	13.10.2022
A006	SITE PLAN – GROUND	E	13.10.2022
A007	BUILDABLE AREA	E	13.10.2022
A101	LOWER FLOOR – EXISTING	E	13.10.2022
A102	GROUND FLOOR - EXISTING	E	13.10.2022
A103	LOWER GROUND FLOOR	F	13.10.2022
A104	UPPER GROUND FLOOR	E	13.10.2022
A105	FIRST FLOOR	E	13.10.2022
A106	ROOF PLAN	E	13.10.2022
A201	ELEVATIONS	E	13.10.2022
A202	ELEVATIONS	E	13.10.2022
A203	ELEVATIONS	E	13.10.2022
A204	ELEVATIONS	E	13.10.2022
A205	FINISH SCHEDULE	F	13.10.2022
A301	SECTIONS	E	13.10.2022
A302	SECTIONS	E	13.10.2022
A303	POOL SECTIONS / PLAN	D	13.10.2022
A1302	EXCAVATION CALCULATION	C	13.10.2022

2. the Applicants’ amended development application was lodged onto the NSW Planning Portal on 20 October 2022; and

3. the Applicants filed the amended development application with the Court on 3 November 2022.

Orders

14. The Court orders that:

1. The appeal is upheld;

2. Development Application DA616/2021/1, as amended, for extensive alterations and additions to the existing dwelling at 28 Beresford Road, Rose Bay, is determined by way of granting development consent, subject to conditions set out in Annexure “A”.

…………………………..

M Chilcott

Commissioner of the Court

(Annexure A) (764143, pdf)

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Decision last updated: 16 November 2022