Yip v Woollahra Municipal Council

[2020] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Yip v Woollahra Municipal Council [2020] NSWLEC 1192
Hearing dates:	Conciliation conference on 4 March 2020
Date of orders:	28 April 2020
Decision date:	28 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [10]-[11]
Catchwords:	DEVELOPMENT APPLICATION – development control order – building information certificate – 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:	Trudi Yip (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: P Larkin (Applicant) J Hewitt (Solicitor) (Respondent)   Solicitors: Quest Legal (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2019/207205 and 2019/207206
Publication restriction:	No

Judgment

1. COMMISSIONER: Ms Trudi Yip is the owner of 15 Goodhope Street, Paddington (the site) and brings an appeal before the Court, firstly, pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal by the Woollahra Municipal Council (the Respondent) of a building information certificate BC11/2019 (BIC Application) (File number 2019/207205), and secondly, under s 8.18 of the EPA Act, against a Development Control Order (Order) issued by the Woollahra Municipal Council (the Respondent) in relation to works on the site (File number 2019/207206).

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 4 March 2020. I presided over the conciliation conference.

3. 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 conditional development consent to the development application.

4. I adjourned the conciliation conference to allow the Applicant to prepare amended plans. On 23 March 2020 I further adjourned the conciliation conference to allow for the terms of an agreement to be finally settled by the parties.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 April 2020.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement modifies the Order issued by the Respondent and, upon completion of the works in accordance with drawings for which leave is sought, provides for the issuing of a building information certificate by the Respondent.

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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]-[11]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the Woollahra Local Environmental Plan 2014 (WLEP), in which dwelling house development is permitted with consent and where it is consistent with the objectives of the zone, which are as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

•  To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood

2. The site is within the Paddington Heritage Conservation Area (C11)(HCA) as identified in Schedule 5 of the WLEP and it is on this basis that the provisions of cl 5.10(4) require the Court consider the effect of the proposed development on the heritage significance of the area. On the basis of the agreed changes to the existing glass balustrade contained in the amended plans, I am satisfied that the proposed development will not adversely impact the HCA.

8. As the jurisdictional prerequisites to the grant of consent have been addressed 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. 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.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979, in relation to File Number 2019/207205, are:

1. The Applicant is granted leave to amend Building Information Certificate Application No.BC11.2019 and to rely upon the following plans:

1. Drawing A01, Existing Ground Floor, Revision C, dated 11 March 2020 and prepared by Morrison Design Partnership;

2. Drawing A02, Existing First Floor, Revision C, dated 11 March 2020 and prepared by Morrison Design Partnership;

3. Drawing A03, Existing East Elevation, Revision C, dated 11 March 2020 and prepared by Morrison Design Partnership;

4. Drawing A04, Existing North Elevation, Revision C, dated 11 March 2020 and prepared by Morrison Design Partnership;

5. Drawings A05, 3D view, dated 11 March 2020 and prepared by Morrison Design Partnership.

2. The Applicant is to remove the existing glass balustrade and construct the Balustrade in the plans referred to in order (1).

3. Within 14 days of completing the works, the Applicant is to notify the Council in writing that it has completed the works referred to in order (2).

4. Upon the Council providing notice to the Applicant in writing as to its satisfaction that the Applicant has complied with order (2) above, the Council is directed, within 14 days, to issue a building information certificate to the Applicant in relation to the Amended Building Information Certificate Application.

5. In the event that the Council has not issued a building information certificate within 28 days of the Applicant providing notice as referred to in order (4), the Applicant has liberty to apply to the Court by way of Notice of Motion to restore this matter to the list.

11. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979, in relation to File Number 2019/207206, are:

1. The appeal is upheld.

2. The development control order issued by the Respondent to the Applicant dated 7 June 2019 is, pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A.

3. The works required under the modified development control order in (2) must be completed by 22 June 2020 or such other period as may be agreed to in writing by the Council’s Manager of Compliance.

4. The Court grants liberty to the Applicant to apply to extend the time referred to in order (3) in the event that, despite employing her best endeavours, she is not reasonably able to complete those works within the time referred to in order (3).

……………………….

Tim Horton

Commissioner of the Court

Annexure A (1.17 MB)

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Decision last updated: 30 April 2020