Yu v Woollahra Municipal Council
[2024] NSWLEC 1166
•10 April 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: Yu v Woollahra Municipal Council [2024] NSWLEC 1166 Hearing dates: Conciliation conference on 25 and 26 March 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that:
(1) The Appeal is upheld.
(2) Development Application DA115/2023/1 for a new three-storey dwelling with basement car parking, roof terrace, landscaping and boundary fencing on land legally described as Lot 3 in Deposited Plan 318314, known as 40 Towns Road, Vaucluse is determined by the grant of Development Consent, subject to the conditions set out in Annexure A.Catchwords: DEVELOPMENT APPLICATION – new dwelling – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Woollahra Local Environmental Plan 2014, cll 5.10, 6.2
Category: Principal judgment Parties: Joyce Yu (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Solicitors:
N Eastman (Applicant)
S Patterson (Solicitor) (Respondent)
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2023/266727 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Joyce Yu (the Applicant) against Woollahra Municipal Council (the Respondent). The Applicant filed this appeal against the refusal by the Respondent of the Development Application DA115/2023/1.
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The Development Application, as amended, seeks development consent for a new three-storey dwelling with basement car parking, roof terrace, landscaping and boundary fencing. The application is on land legally described as Lot 3 in Deposited Plan 318314, known as 40 Towns Road, Vaucluse.
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The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act) which was held on 25 and 26 March 2024. At the conciliation, the parties reached an agreement under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement between the parties was to grant Development Consent to the development application, subject to the amended plans and conditions annexed to the agreement.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.
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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). In reaching that state of satisfaction, I note the following:
Pursuant to the Woollahra Local Environmental Plan 2014 (WLEP 2014), the subject site is zoned R2 Low Density Residential. In determining the Development Application, the parties and I have had regard to the objectives of the zone.
The application was placed on public notification between 3 and 18 May 2023. The Council received two (2) submissions which have been considered by the parties. The notification requirements under the EPA Act have been satisfied.
Clause 5.10 of the WLEP 2014 requires the consent authority to consider the effect of the proposed development on the relevant heritage conservation area. Neither the site, nor the building, are heritage items or within an heritage conservation area.
Clause 6.2 (3) of the WLEP 2014 requires the consent authority to consider various matters relating to earthworks, where relevant. The parties agree that these matters have been considered as a result of the Geotechnical Assessment and Monitoring Report prepared by Asset Geotechnical Engineering Pty Ltd dated Jan 2023 and a subsequent addendum report dated 8 December 2023.
A BASIX Certificate No. 1355915S_04 was issued to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, consideration has been given to whether the site is contaminated. The parties agree that there are no immediate site conditions which would require remediation of the Site. The Statement of Environmental Effects states that, based on historical records there is no suggestion that the land would have been contaminated as there are no known industrial uses which may have contaminated the land. Accordingly, the Site is considered suitable for its continued residential use.
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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’ agreement.
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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 the EPA Act.
Conclusions
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The Court notes that:
That Woollahra Municipal Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No. DA115/2023/1 to rely on the following documents and plans:
Architectural Plans, prepared by ES Design
Drawing No.
Drawing Title
Revision
Date
22020 - 01
DEMOLITION PLAN
D
12.03.2024
22020 – 02
PROPOSED SITE PLAN
E
25.03.2024
22020 – 03
PROPOSED BASEMENT FLOOR PLAN
E
25.03.2024
22020 – 04
PROPOSED GROUND FLOOR PLAN
E
25.03.2024
22020 – 05
PROPOSED FIRST FLOOR PLAN
E
25.03.2024
22020 – 06
PROPOSED SECOND FLOOR PLAN
E
25.03.2024
22020 – 07
PROPOSED ROOF PLAN
E
25.03.2024
22020 – 08
NORTH AND EAST ELEVATION
E
25.03.2024
22020 – 09
SOUTH AND WEST ELEVATION
E
25.03.2024
22020 – 10
SECTION VIEW A
E
25.03.2024
22020 – 11
SECTION VIEW B
E
25.03.2024
22020 – 12
DRIVEWAY GRADE DETAILS
D
12.03.2024
22020 – 13
FRONT FENCE DETAILS
D
12.03.2024
22020 – 14
SCHEDULE OF EXTERNAL MATERIALS, COLOURS AND FINISHES
D
12.03.2024
22020 – 15
STREETSCAPE ANALYSIS PLAN
D
12.03.2024
22020 – 16
SHADOW DIAGRAM – 21ST JUNE, 9AM
D
12.03.2024
22020 – 17
SHADOW DIAGRAM – 21ST JUNE, 12PM
D
12.03.2024
22020 – 18
SHADOW DIAGRAM – 21ST JUNE, 3PM
D
12.03.2024
22020 – 19
DEEP SOIL CALCULATION SHEET
D
12.03.2024
22020 – 20
FLOORPLATE AREA CALCULATION SHEET
D
12.03.2024
22020 – 21
SITE COVERAGE AREA CALCULATION PLAN
D
12.03.2024
22020 – 22
CONSTRUCTION MANAGEMENT PLAN
D
12.03.2024
22020 – 23
BASIX COMMITMENTS
D
12.03.2024
22020 – 24
NATHERS COMMITMENTS
D
12.03.2024
22020 – 25
3D VIEWS
D
12.03.2024
22020 – 26
PRIVACY – FIRST FLOOR PLAN
E
25.03.2024
22020 – 27
PRIVACY – SECTION
E
25.03.2024
22020 – 28
PRIVACY – SECOND FLOOR PLAN
E
25.03.2024
22020 – 29
PRIVACY – SECTION
E
25.03.2024
Stormwater plans, prepared by Capital Engineering Consultants, revision C, dated 13 February 2024.
View Analysis, prepared by Daniel Connell, dated 13 March 2024.
Updated View Analysis for Level 1 Study 1 of No. 38 Towns Road, Vaucluse, prepared by Daniel Connell, dated 21 March 2024.
Geotechnical & Hydrogeological Monitoring Program, prepared by Asset Geotechnical Engineering Pty Ltd, dated 8 December 2023.
Geotechnical & Hydrogeological Investigation (including Annexure B) prepared by Asset Geotechnical Engineering Pty Ltd, dated 12 January 2023.
BASIX Certificate Number 1355915S_04, dated 26 March 2024.
NATHERS Certificate Number 0009329640, dated 26 March 2024.
Orders
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The Court orders that:
The appeal is upheld.
Development Application DA115/2023/1 for a new three-storey dwelling with basement car parking, roof terrace, landscaping and boundary fencing on land legally described as Lot 3 in Deposited Plan 318314, known as 40 Towns Road, Vaucluse is determined by the grant of Development Consent, subject to the conditions set out in Annexure A.
……………………….
Stuart Harding
Acting Commissioner of the Court
266727.23 Annexure A
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Decision last updated: 10 April 2024
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