Zhang v Woollahra Municipal Council

[2024] NSWLEC 1131

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Woollahra Municipal Council [2024] NSWLEC 1131

Hearing dates:

Conciliation conference on 6 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA 516/2021/1, as amended, for the demolition of an existing dwelling house and construction of a new part two and part three storey dwelling house, including basement carparking and a swimming pool at Lot 13, Section 5 in Deposited Plan 5932, known as 76A Beresford Road, Bellevue Hill, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – conciliation conference - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Sch 6, s 3

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

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 - 12, s 6.65

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

Woollahra Local Environmental Plan 2014, cll, 4.3, 6.1, 6.2

Category:

Principal judgment

Parties:

Jian Zhang (Applicant)
Juanyun Zhou (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
B Dyer (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Maddocks Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/258496

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 actual refusal of development application DA516/2021/1. The development application seeks development consent for the demolition of the existing dwelling and construction of a new part two and part three storey dwelling house, including basement car parking, swimming pool and landscaping (DA) at 76A Beresford Road, Bellevue Hill, legally described as Lot 13 Section 5 in DP 5932 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) to the Applicant amending development application DA516/2021/1 in accordance with the documents listed below (amended application):

1. Revision F Architectural Plans, prepared by KA Design Studio Pty Ltd dated 22 February 2024 and stamped on 5 March 2024:

1. DA 2001 Site Analysis;

2. DA 2002 Front Setback Diagram;

3. DA 2003 Controls and GFA Calculations;

4. DA 2004 Site + Roof Plan;

5. DA 2005 Garage + Pool Level;

6. DA 2006 Ground + First Floor Level;

7. DA 2007 West Elevation;

8. DA 2008 North Elevation;

9. DA 2009 East Elevation;

10. DA 2010 Section A;

11. DA 2011 Section B + South Elevation;

12. DA 2012 Driveway Section A/B;

13. DA 2013 Site Waste Minimisation Plan;

14. DA 2014 Construction Management Plan;

15. DA 2015 Schedule of External Finishes;

16. DA 2019 Excavation 2;

2. Revision B Landscape Plans, prepared by Tarn and dated 20 February 2024:

1. DA_BER_102 Indicative Plant Palette;

2. DA_BER_201 Landscape Plan & Indicative Plant Species – Site;

3. DA_BER_202 Indicative Planting – Street front & Upper Boundary;

4. DA_BER_300 Installation Specifications;

3. Revision C Stormwater Drawings, prepared by ITM Design Pty Ltd and dated 21 February 2024:

1. H-DA-00 Legend, Details & Sedimentation Control;

2. H-DA-01 Garage & Pool Level Stormwater;

3. H-DA-02 Ground Floor & First Floor Stormwater;

4. H-DA-03 Roof Stormwater & Pipe Long Section; and

4. BASIX Certificate No. 1222011S-03, prepared by Credwell Energy Pty Ltd and dated 5 March 2024.

3. 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 6 March 2024. I have presided over the conciliation conference.

4. 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 application and granting development consent to the amended application subject to conditions.

5. 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.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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.

9. I am satisfied that owners consent accompanied the development application.

10. The development application was lodged to the Respondent on 5 November 2021. Accordingly, the now repealed EPA Reg 2000 applies in accordance with s 3 of Sch 6 of the Environmental Planning and Assessment Regulation 2021. The Respondent notified the development application between 24 November 2021 to 9 December 2021. Three submissions were received.

11. In entering an agreement, the parties advised the Court that they have considered the concerns raised.

Woollahra Local Environmental Plan 2014

12. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development for a dwelling is permitted with consent and I have had regard to the objectives of the zone.

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

1. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended DA, as shown on the architectural plans prepared by K.A Design Studio Pty Ltd dated 22 February 2024 (architectural plans) and agreed within the town planning joint expert report (TP JER), confirms that the proposed building is less than 9.5m.

2. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5. The Geotechnical Investigation Report prepared by JK Geotechnics dated 25 August 2021 (Geotechnical Report) did not detect any groundwater and therefore the amended DA is unlikely to lower the water table. The provisions of cl 6.1 (2) and (3) do not apply.

3. Clause 6.2 earthworks applies to the amended application. The amended application is accompanied by a Geotechnical Report, stormwater plans prepared by ITM Design Pty Ltd dated 21 February 2024 and architectural plans which address the provisions. Appropriate conditions of consent are also included within Annexure A.

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

14. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

15. The parties agree and I am satisfied that the amended application is accompanied by an amended BASIX Certificate (1222011S_03) that meets the provisions of SEPP BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended application. However due to the DA lodgement date and pursuant to s 6.65(1), the ‘former provisions’ of chapters 6 to 12 apply to the amended application. The relevant provisions are immediately prior to the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022.

17. Chapter 10 of SEPP BC applies as the site is located within the Sydney Harbour Catchment. The Statement of Environmental Effects (SEE) accompanying the application states that the amended DA is not located in the foreshores or waterways areas and will not be visible from Sydney Harbour. The amended application is accompanied by stormwater plans and appropriate conditions of consent at Annexure A that the parties agree deal with stormwater management. With consideration of the above and the jurisdictional statement, the parties agree and I accept that the provisions of SEPP BC are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is accompanied by an SEE which states that the site has a history of residential use for many years and that the s 10.7 Planning Certificate did not identify any contamination on site. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

19. 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.

20. 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.

21. 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

22. The Court orders:

1. The applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA 516/2021/1, as amended, for the demolition of an existing dwelling house and construction of a new part two and part three storey dwelling house, including basement carparking and a swimming pool at Lot 13, Section 5 in Deposited Plan 5932, known as 76A Beresford Road, Bellevue Hill, subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

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Annexure A 

Decision last updated: 21 March 2024