STM 123 No 21 Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:	STM 123 No 21 Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1574
Hearing dates:	Conciliation conference on 4 October 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in Condition A.3 of Annexure "A" to this agreement. (2) The applicant is to pay the respondent's costs thrown away as a result of the applicant amending the application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The appeal is upheld. (4) Development Application DA/472/2018/1 for the demolition of existing structures and construction of a three storey residential flat rebuilding, basement parking, landscaping and site works is approved subject to the conditions in Annexure "A" to this agreement.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy (Affordable rental housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 2014
Cases Cited:	Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Category:	Principal judgment
Parties:	STM 123 No 21 Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/103890
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its development application DA/472/2018/1. The development application seeks approval for the demolition of an existing residential flat building and the construction of a new residential flat building with basement car parking, and strata subdivision. The development is proposed at 274 Old South Head Road, Watsons Bay.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was been held on 4 October 2019. I presided over the conciliation conference.

3. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

4. 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 have formed this state of satisfaction for the following reasons:

1. State Environmental Planning Policy (Infrastructure) 2007: The site has frontage to Old South Head Road which is a classified road. The amended development does not propose access off Old South Head Road, consistent with cl 101 of the instrument.

2. The parties are in agreement that the subject site benefits from existing use rights for the purpose of a residential flat building. The parties agree that the use was lawfully commenced prior to the coming into force of Woollahra Local Environmental Plan 2014 and that upon gazettal of that LEP, the use became prohibited. Further, the parties agree that the use has continued since the date of prohibition, without abandonment for more than 12 months, to the present time.

3. As a result of (4(1)) the subject site benefits from ‘existing use rights’ under Division 4.11 of the EPA Act.

4. Pursuant to s 41(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) the development application proposes that the existing use is to be rebuilt.

5. The application has been assessed in a manner consistent with Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [68-69].

6. Pursuant to State Environmental Planning Policy (Affordable rental housing) 2009 the development is defined as a ‘low – rental residential building’. As a result a monetary contribution arises under cl 51 of the instrument. This contribution is addressed by Condition A5 which requires the payment to be made prior to the issue of a construction certificate.

7. State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the development. Division 2 of the SREP details matters that are required to be considered by the Consent Authority prior to determination. In making the following orders, I have taken these matters into consideration.

8. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and the provisions of the Regulation. The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation.

9. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I accept the position of the parties that the site has a long history of residential use and does not require further specific investigation. I note that no change of use is proposed.

10. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 959903M in compliance with the instrument.

11. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in Condition A.3 of Annexure "A" to this agreement.

2. The applicant is to pay the respondent's costs thrown away as a result of the applicant amending the application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application DA/472/2018/1 for the demolition of existing structures and construction of a three storey residential flat rebuilding, basement parking, landscaping and site works is approved subject to the conditions in Annexure "A" to this agreement.

………………………………

D M Dickson

Commissioner of the Court

Annexure A (653 KB)

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Decision last updated: 28 November 2019