Land and Environment Court New South Wales Medium Neutral Citation: Green Wall Property Developers Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1560 Hearing dates: Conciliation conference on 11 August 2020 and 28 August 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders at [42] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014 Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Green Wall Property Developers Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: R Wilcher (Solicitor) (Applicant) M Harker (Solicitor) (Respondent) Solicitors: Hicksons Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/172149 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Woollahra Municipal Council's refusal of Development Application No. DA 13/2019/1 (DA). 2. The DA, with modifications incorporated into amending plans, seeks consent for demolition of the existing buildings, and construction of a new residential flat building with underground parking, new landscaping and strata subdivision, and remediation of land, at Nos. 590-592 New South Head Road, Point Piper. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 11 and 28 August 2020, and at which I presided. After the conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings (in notes titled: (1) "LEC Proceedings 2020/00172149 - Jurisdictional Statement" provided to the Court by email received on 26 October 2020, and (2) "Supplementary Jurisdictional Statement" dated 4 November 2020). Regarding jurisdiction, and noting this advice and previous oral advice, I am satisfied in regard to the matters listed below. Permissibility 1. The use of the subject land for the purposes of a residential flat building is prohibited as an innominate use within the applicable R2 zone under the Woollahra Local Environmental Plan 2014 (LEP). 2. The application relies on 'existing use' rights under Division 4.11 of Part 4 of the EPA Act and cll 40-46 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 3. I accept the agreed advice of the parties that the current buildings on the site have been used lawfully for the purposes of residential flat buildings since the 1920s, and that in this regard: 1. No. 590 New South Head Road was constructed as a dwelling house and was subsequently converted into 2 units on or about 1921. The strata subdivision of the building into 2 units was approved in 1975. 2. No. 592 New South Head Road was also originally constructed as a dwelling house. The conversion of this building into a residential flat building likely took place in the 1920's. Strata subdivision of the residential flat building was approved in 1981. 1. Those uses have not been abandoned, with the buildings currently in use, as was clear at the site inspection. 2. I accept the agreed advice of the parties that on the basis of the above the development benefits from existing use rights and can be carried pursuant to cl 41(1)(a) to (c) of the EPA Reg. Height of Buildings 1. The proposed development exceeds the height of buildings standard under cl 4.3 of the LEP. The height of buildings standard is 9.5m. The maximum height of the building is 12.4m, contravening the standard. 2. The applicant is seeking an exception to compliance with the development standard under cl 4.6 of the LEP. In accordance with cl 4.6(3) of the LEP, the applicant has filed a written request to vary the building height standard, which was prepared by GSA Planning and dated August 2020. 3. I have reviewed the request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained. 4. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of the LEP). It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request adopts the first "Wehbe way", showing how, otherwise, the development, relevantly, achieves the objectives of cl 4.3. 5. I reproduce the list of objectives of the clause below: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, … 1. For me, both objectives (a) and (b), are the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ('Baron') to be "explanatory of the purpose of the … development standard" (Baron at [32]). Objective (a) explains how certain building height controls (i.e. the pertinent development standards) are established. That is to say, objective (a) is already achieved. Similarly, objective (b) is also achieved with the varying height controls in the LEP building height maps near zone boundaries. 2. To the extent that it is relevant, I accept the written request's position that the proposed development has considerable points of consistency with the desired future character of the neighbourhood having regard to the separation between building modules, stepping back at the upper level and interface with neighbours and the public domain, including via landscaping. However, in my view, objectives (a) and (b) are not placed under threat by the proposed development and, in this case, the test of the first Wehbe way needs to concentrate on objectives (c) and (d). 3. The written request shows how the proposed development appropriately maintains solar access, views, visual intrusion and privacy. On this basis, the written request adequately demonstrates objectives (c) and (d) are achieved notwithstanding the contravention of the development standard. 4. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case through satisfying the requirements of the first Wehbe way. 5. While it has no consequence given the above finding, I note that the written request sought to demonstrate that the third Wehbe way was also satisfied. The third Wehbe way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required (Wehbe at [46]). This was not adequately demonstrated in the written request in my opinion. 6. The written request outlines certain environmental planning grounds seen as justifying the contravention. The planning grounds of particular pertinence to me, in the written request, are in respect to how the building responds to the steep topography and allows neighbouring (higher) properties to look over the building without affecting their views. I am satisfied that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. 7. Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied. 8. I now turn to the test at cl 4.6(4)(a)(ii) of the LEP. 9. I rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable height standard. 10. The zone objectives 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. 1. I find the proposed development consistent with the objectives of the R2 Low Density Residential zone in the LEP. This is because the proposed development provides upgraded residential accommodation within the existing low density residential environment, consistent with the first zone objective. Through its architectural and landscape design, the proposed development gives good consideration to the amenity and character of the surrounding neighbourhood, consistent with the third objective. The second zone objective is not relevant. 2. The proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the R2 Low Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met. 3. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height control. Other LEP provisions 1. The parties have provided detailed advice in respect of cl 6.1 (regarding acid sulfate soils) and cl 6.2 (regarding earthworks). With this advice I am satisfied that cl 6.1(3) of the LEP does not apply and that I have given consideration to the matters required under cl 6.2(3). State Environmental Planning Policy No 55 – Remediation of Land 1. In regard to cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land (Contaminated Land SEPP), a Detailed Site Investigation Report by Douglas Partners, dated April 2019, was submitted by the applicant (DP Report). That report concluded that the risk of contamination at the site is generally quite low, however intrusive soil investigation, including corresponding sampling and analysis was recommended to confirm this conclusion. I am advised that Council's Environmental Health Officer, having reviewed the DP Report and its recommendation and is satisfied that the application, from a remediation perspective, is satisfactory. The proposed conditions of consent require the development to be carried out in accordance with the DP Report (condition A.4). 2. In my view, there has been appropriate consideration under cl 7(1)(a) of the Contaminated Land SEPP, the provisions of subclauses (b) and (c) are not triggered here, and appropriate safeguard provisions are included in the conditions of consent. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 1. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the development as it consists of the erection of a new residential flat building, with 3 storeys above ground level and contains more than 4 dwellings. 2. Council is now satisfied with the amended plans. They firstly address previous concerns regarding poor internal amenity. In terms of externalities the proposed development now provides for increased separation distance between the modules and an overall reduced bulk and scale of the building including in regard to the parapets. Water views to the properties immediately behind will be preserved (which is achieved largely by the changes in the front parapet) and the neighbour amenity concern is in regard to overlooking, impact on the driveway, and loss of water views; are all addressed. 3. I have considered the agreed positive views of the parties in regard to SEPP 65 and taken into consideration the design quality of the proposed development (as amended), when evaluated in accordance with the design quality principles, and the Apartment Design Guide (as required by cl 28(2)). I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria (as required by cl 30(2)). State Environmental Planning Policy (Infrastructure) 2007 1. Clause 102 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the development as the site is adjacent to New South Head Road which has a daily traffic volume of more than 20,000 vehicles. 2. The Acoustic Report prepared by Acoustic Dynamics and dated 17 January 2019, identifies the required traffic noise attenuation for walls, doors, windows, and roofs within the development and identifies that the walls and roof will meet the requisite standard in cl 102. Minimum glazing requirements for glass windows and doors are also set out in the report. The development is required to be carried out in accordance with the Acoustic Dynamics Report by the conditions. Relevant to cl 102(2), Council also advises that consideration has been given to the "Development Near Rail Corridors and Busy Roads – Interim Guidelines". My consideration of the guideline is here reliant on that of Council. BASIX certificate for amended development 1. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. I accept the agreed advice of the parties that BASIX certificate as provided is adequate in regard to cl 2A(1) of the EPA Regulation. Submissions 1. Mindful of s 4.15(1)(d) of the EPA Act, I have been advised of the submissions made in regard to the proposed development. It is evident to me that these submissions have been taken into consideration by Council, noting the amendments to the proposed development. In turn I can note that I have also given consideration to these submissions. Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. 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. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders: 1. The Applicant is granted leave to amend their development application in accordance with the following plans referred to in condition A.4 of Annexure A: Reference Description Author/Drawn Date(s) A-100, D Basement Level Parking Plan System Architects 01/09/2020 A-101, D Floor Plan Ground LVL A-102, D Floor Plan First Floor LVL A-103, D Floor Plan Second Floor LVL A-104, D Floor Plan Third Floor LVL A-105, D Roof Plan A-201, D Elevations A-202, D Elevations A-300, D Sections A-301, D Sections - Mosaic Tiles Wall Images September 2020 1. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The objection pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 to vary the building height standard at cl 4.3 of Woollahra Local Environmental Plan 2014 is upheld. 3. Development consent be granted to Development Application No. DA13/2019/1 for demolition of the existing buildings, and construction of a new residential flat building with underground parking, new landscaping and strata subdivision, and remediation of land, at Nos. 590-592 New South Head Road, Point Piper subject to the conditions in Annexure A. .………………………… P Walsh Commissioner of the Court Annexure A (894054, pdf) Plans (Part 1 of 3) (13706213, pdf) Plans (Part 2 of 3) (14735734, pdf) Plans (Part 3 of 3) (15773702, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2020