Voulgarakis v Council of the Municipality of Woollahra

[2020] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:

Voulgarakis v Council of the Municipality of Woollahra [2020] NSWLEC 1285

Hearing dates:

Conciliation conference on 23 June 2020

Date of orders:

03 July 2020

Decision date:

03 July 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to rely on the amended plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A.

(2) The appeal is upheld.

(3) Development application DA2019/170/1 for alterations and additions to an existing terrace house at 49 Cascade Street, Paddington is approved subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to attached dwelling – 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

Category:

Principal judgment

Parties:

Anastasia Voulgarakis (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
P Kioussis (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

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

File Number(s):

2020/120766

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns the grant of a development application for alterations and additions to an existing attached dwelling at 49 Cascade Street, Paddington. The development application was lodged on 3 May 2019 and sought the extension of the ground floor living area towards the rear courtyard and the extension of an upper floor bedroom so as to sit in line with the ground floor extension. Development consent was granted on 22 October 2019, with a condition that required deletion of the proposed first floor level rear additions. The appeal against that determination is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 held on 23 June 2020. I presided over the conciliation conference.

3. Following the conciliation conference, 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments are a minor amendment and therefore there is no requirement for an order to be made under s 8.15(3) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is located within the R2 Low Density Residential Zone within the Woollahra Local Environmental Plan 2014 (“WLEP 2014”) and development for the purpose of an attached dwelling is permissible in the zone with consent.

• The proposed development complies with applicable development standards under the WLEP 2014 including height and floor space ratio.

• The development is located in the Paddington Heritage Conservation Area and the effect of the development on the heritage significance of the heritage conservation area has been considered, as required by cl 5.10(4) of the WLEP 2014. A heritage impact statement prepared by Cracknell and Lonergan Architects accompanied the development application, and I am satisfied that the alterations and additions sought by the proposed development does not unreasonably impact on the heritage significances of the Paddington Heritage Conservation Area.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

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

1. Leave is granted for the Applicant to rely on the amended plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A.

2. The appeal is upheld.

3. Development application DA2019/170/1 for alterations and additions to an existing terrace house at 49 Cascade Street, Paddington is approved subject to the conditions in Annexure B.

…………………….

J Gray

Commissioner of the Court

Annexure A (130768, pdf)

Annexure B (524029, pdf)

Plans (1046389, pdf)

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