Zhang v Council of the Municipality of Woollahra

[2024] NSWLEC 1699

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zhang v Council of the Municipality of Woollahra [2024] NSWLEC 1699

Hearing dates:

Conciliation conference on 16 October 2024

Date of orders:

01 November 2024

Decision date:

01 November 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

Modification application D268/2022/2 (as amended) for the modification of Development Consent D268/2022/1 at 7 Wolseley Road, Point Piper is approved by deleting Condition C.1(a), as set out in Annexure A.

(2) Development Consent D268/2022/2 is modified in the terms in Annexure A.

(3) Development Consent D268/2022/2, as modified by the Court is Annexure B.

Catchwords:

APPEAL – modification of development consent – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

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

Environmental Planning and Assessment Regulation 2021, ss 100, 113

State Environmental Planning Policy (Resilience and Hazards) 2021

Woollahra Local Environmental Plan 2014, cll 6.1, 6.2

Category:

Principal judgment

Parties:

April Zhang (Applicant)
City of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/115610

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the construction of a new dwelling house and pool at 7 Wolseley Road, Point Piper. The original development application was granted approval subject to conditions of consent on 6 June 2023. Subsequently a modification application was lodged on 20 September 2023, which sought to make changes to the approved development through the deletion of Condition C.1(a) in respect of excavation, deletion of Condition C1(c)(ii) in respect of privacy measures (balconies) and the amendment of Conditions C1.13 (a) and (b) in respect of the volume of the proposed rainwater tank. Consent was granted to the modification application on 6 February 2024 effectively modifying the consent as requested with the exception of the deletion of Condition C.1(a) in respect of excavation. Condition C.1(a) requires the deletion of an area of excavation within the basement that is proposed to be used for bicycle parking area and a water tank. The subject appeal therefore relates solely to this component of the proposal.

2. The subject appeal is lodged pursuant to s 8.9 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 modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [14] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was held on 16 October 2024. I presided over the conciliation conference.

4. At 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 agreement reflects Council’s approval of amendments to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

5. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites. Based on the Agreed Statement, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act. This includes the reasons given by the consent authority for the grant of the consent that is sought to be modified.

6. 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 on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

• Qualitatively, the proposal results in a dwelling house that is largely consistent with that approved under the development consent with no changes to the use or the overall character or appearance of the development when viewed from the public domain. Although the modification will provide for an increase in excavation this will be entirely below the approved building footprint, will not be visible externally and will allow reconfiguration of the basement floor plan and augmentation of the stormwater system only. It is agreed by the parties, and I accept, that notwithstanding the additional excavation the development will appear substantially the same as the original approval and there will be no perceived differences.

• Quantitatively, the proposed development as modified provides a relatively small increase in excavation and basement footprint resulting in an increase in excavation of 67m³, and the raising of the garage floor level by 100mm. The additional excavation will result in a minor increase in traffic movements however this will not be significant and can readily be accommodated within the surrounding road network. It is agreed by the parties, and I accept that, the additional excavation does not so alter the development such as to render it not substantially the same.

7. Having regard to the original and modified application I consider that the fundamental characteristics and essence of the proposed development remain unchanged by the proposed modification, and that the changes are not significant when considered qualitatively or quantitatively in the context of the development as a whole.

8. The modification application was notified by the respondent between 11 October 2023 and 26 October 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification one submission was received and the submission was considered in the preparation of the Respondent’s Statement of facts and Contentions in Reply.

9. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application was accompanied by the BASIX certificate submitted with the original application and dated 30 April 2022.

10. Relevant to the proposed additional excavation, I note that consideration has been given to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 and that the site has been found to be suitable for the proposed use subject to conditions of consent which are not affected by the proposed modification.

11. Further I have considered the relevant clauses of Woollahra Local Environmental Plan 2014 including clause 6.1 (Acid Sulfate Soils) and Clause 6.2 (Earthworks) and note that additional information has been submitted to address the matters for consideration set out in clause 6.2.

12. 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)).

13. 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 modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

14. The Court orders that:

1. The appeal is upheld

2. Modification application D268/2022/2 (as amended) for the modification of Development Consent D268/2022/1 at 7 Wolseley Road, Point Piper is approved by deleting Condition C.1(a), as set out in Annexure A.

3. Development Consent D268/2022/2 is modified in the terms in Annexure A.

4. Development Consent D268/2022/2, as modified by the Court is Annexure B.

H Miller

Acting Commissioner of the Court 

Annexure A 

Annexure B

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Amendments

01 November 2024 - Corrected Date of Orders

Decision last updated: 01 November 2024