Stoliar v Woollahra Municipal Council

[2018] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stoliar v Woollahra Municipal Council [2018] NSWLEC 1639
Hearing dates:	Conciliation conferences on 6 November 2018; 19 November 2018 and 21 November 2018
Date of orders:	10 December 2018
Decision date:	10 December 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Ronen Stoliar (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) S Puckeridge, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/246029
Publication restriction:	No

Judgment

1. COMMISSIONER: Ronen Stoliar (the Applicant) has appealed the decision of Woollahra Municipal Council (the Respondent) to refuse his development application for construction of a new 3 storey residential flat building with a basement level car park (the proposed development) on Lot 34 in Deposited Plan 4247, known as 22 Spencer Street, Rose Bay (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6, 19 & 21 November 2018, and I have 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 granting consent to the development application, subject to conditions.

5. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisite of relevance in these proceedings to be a request by the Applicant, prepared in accordance with the provisions of cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), to vary the development standard under cl 4.1A of WLEP in relation to the minimum lot size of 700m2 required under cl 4.1A for a residential flat building on land zoned R3 Medium Density Residential. The Subject Site has a lot size of 557.4m2.

7. The parties have explained how the jurisdictional prerequisites have, in their opinion, been satisfied, as follows:

1. The development standard in cl 4.1A is not expressly excluded from the operation of cl 4.6 of WLEP;

2. The sole objective of the minimum lot size standard in cl 4.1A, which is to achieve planned residential density in certain zones consistent with the desired future character of the neighbourhood, is met notwithstanding the non-compliance, for reasons provided within the cl 4.6 variation written request prepared by Planning Ingenuity and dated 9 November 2018. That written request provides reasons as to the basis upon which the parties are satisfied that the Applicant’s proposed development is consistent with the desired future character of the Rose Bay neighbourhood, and with the objectives for that desired future character as provided within Part B of Woollahra Development Control Plan 2015;

3. The proposed development is consistent with the objectives of the R3 zoning of the Subject Site under WLEP for reasons provided within the cl 4.6 variation written request prepared by Planning Ingenuity and dated 9 November 2018;

4. There are sufficient environmental planning grounds to justify contravening the standard, based on:

1. the isolation of the Subject Site arising from the nature of developments on both of its side boundaries, and

2. the fact that the proposed development would achieve the objects of the EPA Act set out in s 1.3 of that Act, notably:

1. to promote the orderly and economic use and development of land; and

2. to promote good design and amenity of the built environment.

5. The proposed development is in the public interest because:

1. notwithstanding the contravention of the standard in cl 4.1A of WLEP, the proposed development achieves:

1. the objectives of the standard;

2. the objectives of the zone in which the Subject Site is located; and

2. there are sufficient environmental planning grounds to justify the contravention of the standard.

8. Having considered the advice of the parties, provided above at [7], I agree that the jurisdictional prerequisites in relation to which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied.

9. 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, for reasons provided at [7] and [8].

10. 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.

11. The orders of the Court are:

1. Leave is granted to the Applicant to rely on the amended architectural plans and landscape plans set out in condition A.3 of Annexure A.

2. The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the application for development consent, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,500.00 within 14 days of the date of these orders;

3. The Applicant's written request dated 9 November 2018 pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 ("WLEP") in relation to clause 4.1A of the WLEP has been considered and the necessary state of satisfaction under clause 4.6(4) of WLEP has been met. Consequently, the Applicant's written request is well founded and is upheld.

4. The appeal is upheld;

5. Development consent is granted to Development Application No. 275/2018/1 for the demolition of an existing dwelling and the construction of a new 3 storey residential flat building with a basement level car park on Lot 34 in Deposited Plan 4247, known as 22 Spencer Street, Rose Bay, subject to the conditions of consent in Annexure A.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (468 KB, pdf)

Decision last updated: 11 December 2018