Wu v Woollahra Municipal Council

[2024] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wu v Woollahra Municipal Council [2024] NSWLEC 1118

Hearing dates:

Conciliation conference on 11 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. 532/2022/1, as amended, for the demolition of the existing dwelling and construction of a new four-storey dual occupancy including a pool and garage at 4 Tivoli Avenue, Rose Bay is determined by the grant of consent, subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Woollahra Local Environmental Plan 2014 cll, 2.3, 2.7, 4.1A, 4.3, 4.6, 6.1, 6.2

Category:

Principal judgment

Parties:

Xiao Liang Wu (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
B Dyer (Solicitor) (Applicant)
J Zorzetto (Solicitor) (Respondent)

Solicitors:
Maddocks Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/256006

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA532/2022/1. The development application seeks development consent for the demolition of the existing dwelling and construction of a four-storey dual occupancy development including a pool and garage (DA) at 4 Tivoli Avenue, Rose Bay, legally described as Lot C in DP 337179 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA532/2022/1 in accordance with the documents listed below (amended DA):

3. The amended DA was filed with the Court on 11 March 2024.

4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March 2024. I have presided over the conciliation conference.

5. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

6. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

Jurisdictional prerequisites

9. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owners’ consent accompanied the DA.

11. The DA was lodged with the Respondent on 30 November 2022. The Respondent notified the DA between 18 January 2023 to 2 February 2023. Nine submissions were received. At the commencement of the proceedings, four objectors (including their representatives) expressed their concerns orally and pressed their written objections.

12. In reaching agreement, the parties have advised the Court that they have considered the relevant concerns raised by the objectors.

Woollahra Local Environmental Plan 2014 (WLEP)

13. The site is zoned R2 Low Density Residential under the WLEP. The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone.

14. The parties agree and I accept that the following applicable WLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.1A Minimum lot sizes for dual occupancies applies to the amended DA, which stipulates a minimum site area of 460m². As shown on the survey plan prepared by Hill and Blume Surveyors dated 25 May 2023, the site is above the minimum requirement at 843.1m².

3. Clause 4.3 Height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended DA exceeds the maximum height, at 12.16m. The amended DA is supported by a cl 4.6 written request prepared by Tony Moody Planning and Development dated 22 February 2024 (written request) to vary the height development standard. I note that due to the lodgement date of the DA, the immediately former provisions of cl 4.6 apply.

4. With respect to the provisions of cl 4.6, I am satisfied that the written request has justified the contravention of the development standard. Regarding cl 4.6(4)(a)(i) and cl 4.6(3)(a), the written request justifies that compliance is unreasonable or unnecessary in the circumstances as the non-compliance achieves the objectives of the height development standard. Regarding 4.6(3)(b), the written request details the sufficient environmental grounds that justify the non-compliance, in particular the topography of the site and increased rear setback to allow view sharing to the adjoining properties (described throughout the written request).

5. Regarding cl 4.6(4)(a)(ii), I am satisfied that the proposed development will be in the public interest for the reasons set out in the written request. I accept that the proposed development is consistent with the objectives of the height of building development standard and zone as described in the written request.

6. Clause 6.1 Acid sulfate soils applies to the site as the site is mapped as Class 5. However, the site is not located within 500m of Class 1, 2, 3 or 4 land. The provisions of cl 6.1(2) and (3) therefore do not apply.

7. Clause 6.2 Earthworks applies to the amended DA. The amended DA is supported by a Geotechnical Report prepared by Crozier Geotechnical Consultants dated 28 November 2022, Demolition Report prepared by Ruth Daniell dated November 2022, stormwater and sedimentation plans prepared by ITM Design Pty Ltd dated 21 November 2022 and 1 March 2023 (stormwater plans), volumetric excavation plan prepared by PopovBass Architects dated 21/02/2024, Site Waste Minimisation and Management Plan prepared by PopovBass dated 21 November 2022. This documentation addresses the provisions. Appropriate conditions of consent are also included within Annexure A, including dilapidation reports for existing buildings (in particular 2 Tivoli Avenue and 6A Tivoli Avenue) and public assets; as well as conditions in relation to geotechnical and hydrogeological monitoring.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX)

15. The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, SEPP BASIX applies instead.

16. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (1352382M_02) that meets the provisions of SEPP BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

17. Chapter 6 of SEPP BC applies to the site, which is located within the Sydney Harbour Catchment. Sections 6.6, 6.7, 6.8 and 6.9 are relevant.

18. The parties submit and I accept that the site is not in proximity to any waterbody, watercourse, wetland or riparian vegetation and accordingly will not have any adverse environmental impacts. The amended DA is accompanied by a suite of stormwater plans that form part of the conditions of consent and specific conditions that will appropriately regulate ongoing stormwater management.

19. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

20. The provisions of s 4.6 of SEPP Resilience and Hazards apply to the site. The amended DA is accompanied by a Statement of Environmental Effects prepared by Tony Moody Planning and Development (within the Class 1 Application) which states that the site has a history of residential use for many years. Accordingly, the parties agree, and I am accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately satisfied.

Conclusion

21. 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.

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

23. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

24. The Court orders:

1. The appeal is upheld.

2. Development Application No. 532/2022/1, as amended, for the demolition of the existing dwelling and construction of a new four-storey dual occupancy including a pool and garage at 4 Tivoli Avenue, Rose Bay is determined by the grant of consent, subject to the conditions in Annexure ‘A’.

……………………….

S Porter

Commissioner of the Court

256006.23 Annexure A

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Decision last updated: 19 March 2024