Younes v Woollahra Municipal Council

[2023] NSWLEC 1701

Land and Environment Court

New South Wales

Medium Neutral Citation:

Younes v Woollahra Municipal Council [2023] NSWLEC 1701

Hearing dates:

Conciliation conference on 2 November 2023

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA404/2022/1 for the demolition of two existing dwellings and construction of a part two, part three storey dwelling, a swimming pool, tennis court, landscaping and carparking at 76-78 New South Head Road, Vaucluse NSW 2030 also identified as Lot C and Lot D in DP374587 is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new residential dwelling with basement car parking, tennis court, swimming pool and associated landscaping – amended plans – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Div 2, s 6.6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6

Texts Cited:

Woollahra Community Participation Plan 2019

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Lolita Younes (First Applicant)
MHN Design Union Pty Ltd (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
I Hemmings SC (First and Second Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (First and Second Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/132691

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal bought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Lolita Younes (the Applicant) against the actual refusal of development application number DA 404/2022/1. The application, as amended, seeks consent for the demolition of two existing dwellings and construction of a part two, part three storey dwelling a swimming pool, tennis court, landscaping and carparking. The development is proposed at 76-78 New South Head Road, Vaucluse NSW 2030 also identified as Lot C and Lot D in DP374587.

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 2 November 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. The amendments to the development application include the reduction in building bulk, changes to articulation, changes to the landscape plans and the changes to the driveway and other changes to resolve matters in contention and respond to the issues raised in the public submissions.

3. 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 form this state of satisfaction on the basis that:

1. The development application was made with the consent of the owner of the land, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified to adjoining and nearby properties from 12 October 2022 to 27 October 2022 in accordance with the Woollahra Community Participation Plan 2019. Seven submissions were received. Further, a number of residents addressed the Court at the commencement of the proceedings. I am satisfied the amended development application does not require readvertising because the environmental impact of the amendments will be the same or lesser than the original proposal. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is identified as within the Coastal Use Area. As required by s 2.11 of SEPP RH in determining the development I have considered whether the proposed development is likely to have an adverse impact on the matters listed at s 2.11(1)(a). Further, I am satisfied the development is designed, sited and will be managed to avoid an adverse impact on a matter listed at s 2.11(1)(a). Finally, I have taken into account the environment of the Coastal Use Area and the bulk, scale and size of the proposed development.

4. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that the site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

5. The development application is accompanied by the BASIX certificate in compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the development application seeks consent for tree removal. The parties agree and I accept that the proposed tree removal and replacement planting proposed in the amended landscape plan satisfies the objectives of the Chapter.

7. The site falls within land mapped as Sydney Harbour Catchment but is outside the mapped “Foreshores and Waterways Area”. Division 2 ‘Controls on development generally’ applies. The Applicant has provided stormwater engineering plans which the parties agree, and I accept demonstrate that s 6.6(2). The section is satisfied because it has been demonstrated that there is a neutral or beneficial impact on quality of water entering a natural waterbody and that impacts of water flow in the natural waterbody have been minimised.

8. The Woollahra Development Control Plan 2015 (DCP 2015) applies to the site. The statement of environmental impacts and the agreed jurisdictional note details the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. 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 requires 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)).

5. 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.

6. The Court notes that:

1. The Respondent, Woollahra Municipal Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA404/2022/1 by removing as part of the development description, the amalgamation of each of the lots that form the Development Application.

2. The Respondent, Woollahra Municipal Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA404/2022/1 to rely on the documents listed below:

Reference	Description	Author/Drawn	Date(s)
Architectural Plans
DA0000	Cover Page Rev D	MHN Design Union	­11/10/2023
DA2000	Basement Plan Rev D	MHN Design Union	­11/10/2023
DA2001	Lower Ground Floor Plan Rev D	MHN Design Union	11/10/2023
DA2002	Ground Floor Plan Rev C	MHN Design Union	­11/10/2023
DA2003	Level 1 Floor Plan Rev C	MHN Design Union	­11/10/2023
DA2004	Site & Roof Rev C	MHN Design Union	­11/10/2023
DA3000	Elevations - Sheet 1 Rev C	MHN Design Union	­11/10/2023
DA3001	Elevations - Sheet 2 Rev C	MHN Design Union	­11/10/2023
DA3100	Sections - Sheet 1 Rev D	MHN Design Union	­11/10/2023
DA3101	Sections - Sheet 2 Rev D	MHN Design Union	­11/10/2023
DA8000	Section Z - Additional Long Section Rev D	MHN Design Union	­11/10/2023
DA8001	Excavation - Reduction Rev E	MHN Design Union	20/10/2023
DA8002	Sight Line Level 1 Terrace & 19 Hopetoun Ave Rev C	MHN Design Union	­11/10/2023
DA8003	Sight Line Level 1 Terrace & 21 Hopetoun Ave Rev C	MHN Design Union	­11/10/2023
DA8004	Sight Line Level 1 Terrace &21 Hopetoun Ave - 2 Rev C	MHN Design Union	­11/10/2023
DA8005	Sight Line Terrace Level 1 & 23 Hopetoun Ave - 2 Rev C	MHN Design Union	­11/10/2023
L-01- K	Landscape Plan	Site Design + Studio	30/10/2023
L-02 - K	Landscape Plan	Site Design + Studio	30/10/2023
L-03 - K	Landscape Plan	Site Design + Studio	30/10/2023
L-04 - K	Landscape Plan	Site Design + Studio	30/10/2023
Amended Arboricultural Impact Assessment Report and Management Plan	George Palmer – Botanics Tree Wise People Pty Ltd	08/09/2023
Amended Tree Table	George Palmer – Botanics – Tree Wise People Pty Ltd	not dated
220204	Stormwater Management Plans
SW001-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW002-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW100-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW101-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW102-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW103-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW104-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW200-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW201-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
SW202-C	Stormwater Management Plans	RTS Civil Consulting Engineers	05/10/2023
220204 CW101-C	Civil Driveway Access Plan	RTS Civil Consulting Engineers	05/10/2023
BASIX Certificate No. 1314110S_04	PEM Group Co Pty Ltd	1 November 2023

3. The Applicant has filed the plans and documents referred at [6(2)] on 13 November 2023.

7. The Court orders that:

1. The appeal is upheld.

2. Development Application DA404/2022/1 for the demolition of two existing dwellings and construction of a part two, part three storey dwelling, a swimming pool, tennis court, landscaping and carparking at 76-78 New South Head Road, Vaucluse NSW 2030 also identified as Lot C and Lot D in DP374587 is determined by the grant of consent subject to conditions contained in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 23 November 2023