Land and Environment Court New South Wales Medium Neutral Citation: Pike v Woollahra Municipal Council [2023] NSWLEC 1385 Hearing dates: Conciliation Conference on 24 May, 21 and 27 June 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away, in the agreed sum of $9,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of this judgment. (2) The Applicant's written request pursuant to cl 4.6 of Woollahra Local Environmental Plan 2014 seeking to vary the development standard in relation to the height of buildings in cl 4.3 in Woollahra Local Environmental Plan 2014 is upheld. (3) The appeal is upheld. (4) Development Application DA2022/350/1 for extensive alterations and additions to the existing dwelling including new subterranean basement level accommodating car lift, turntable and storage and new swimming pool with associated landscaping on Lot 13 in DP 1111463 and Lot 14 in DP 954 known as 23 Elizabeth Street, Paddington, is approved subject to the conditions in accordance with Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Woollahra Local Environmental Plan 2015, cll 2.2, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2, 6.15 Texts Cited: Woollahra Community Participation Plan 2019 Woollahra Development Control Plan 2015 Woollahra Municipal Council, Paddington Floodplain Risk Management Study 2019 Category: Principal judgment Parties: Anne Pike (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: J Palmer (Solicitor) (Applicant) Kara Mezinic (Solicitor)(Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/375684 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2022/350/1 (the DA). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 May and further adjourned to 21 and 27 June 2023. I presided over the conciliation conferences, which commenced with a site inspection on 24 May 2023. 3. The revised plans (dated May 2023 and June 2023) constituting an amendment to the DA were submitted by the applicant and these revised plans formed the basis of the discussion at the conciliation conference. 4. A number of objectors attended the on-site view and provided submissions. 5. At the series of s 34 conciliation conferences following the on-site view on 24 May 2023, 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 and granting development consent to the DA subject to conditions. 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 DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows: 1. The DA was lodged by the registered proprietor of the subject site who provided owner's consent; 2. The DA was notified by the respondent for a period of 14 days, between 14 and 29 September 2022, in accordance with Chapter 6 of the Woollahra Community Participation Plan 2019. Following submission of a replacement application, the DAwas re-notified for 14 days, between 23 November and 8 December 2022. Fifteen submissions were received in response to the public notification. 3. In relation to the provisions of the Woollahra Local Environmental Plan 2014 (WLEP): 1. The subject site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.2 of the WLEP; and 1. the proposed alterations and additions to the existing dwelling including new subterranean basement level accommodating car lift, turntable and storage and new swimming pool with associated landscaping are permissible with consent in the R2 Low Density Residential zone within which the subject site is located; 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Pursuant to cl 4.3 of the WLEP in relation to the height of buildings (HoB) a development standard of 9.5 metres (m) maximum building height is applicable to development of the subject site; and 1. the amended DA proposes a building height of 10.8m, which represents a 1.3m (or 14%) exceedance of the HoB development standard; 2. the existing heritage dwelling currently erected on the subject site (which is to be retained) has a maximum height of 10.8m which already breaches the maximum building height by a similar margin. The non-compliance with the building height is a result of works to the existing roof and creation of an attic room with dormer windows on the rear elevation; 3. the Applicant has submitted a written request pursuant to the provisions of cl 4.6 of the WLEP, prepared by PCN Urban and dated 4 August 2022 seeking to vary the applicable HoB development standard. 1. The parties submit, and I am satisfied, that the applicant's amended cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable noting that: 1. the provisions of cl 4.3(2) of WLEP provide a maximum height of buildings of 9.5m for development on the subject site. The breach in the HoB development standard arises from the proposed alterations and additions to the existing dwelling to provide for: 1. Roof re-tiling of the existing roof at height of 10.8m (14% exceedance); 2. Lining of the existing roof space to form an attic bedroom (11% exceedance); 3. Addition of two rear dormer windows to the attic bedroom (with a ridgeline at 9.6m or 1% exceedance); 1. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of WLEP because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant's written request, which I adopt; 2. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of WLEP, for the following reasons: 1. the existing heritage dwelling on the site, which is proposed to be altered under the Applicant's DA, exceeds the HoB development standard in cl 4.3 of the WLEP. The major part of this dwelling is to be retained; 2. the proposed roof tiling, inclusion of an attic room in the roof space and provision of rear dormer windows will facilitate the maintenance of the heritage dwelling and its adaptation to changing user requirements; 3. The character of the neighbourhood is one of greater building heights than 9.5m. The proposed exceedance will be consistent with the character of the surrounding streetscape and the Paddington Heritage Conservation Area; 4. the proposed dormer windows will provide a more architecturally coherent dormer location in the existing roof. The exceedance will enable the rear dormer windows to be located appropriately for the architectural proportions of the existing heritage building; and 1. the approval of the proposed development will be in the public interest for the reasons provided above (at [3(c)(ii)] and [3(c)(iii)]). Furthermore, the proposed development is consistent with the objectives for the HoB development standard and for development within the R2 zoning of the subject site for reasons provided within the Applicant's written request, which I also adopt. 1. The provisions of cl 5.10 of the WLEP concern heritage conservation. The subject site is within the Paddington Heritage Conservation Area (HCA) (item C8 Pt 2 of Sch 5 to the WLEP). As required by cl 5.10(5) of WLEP 2014, the effect of the proposed development on the item and HCA must be considered. A Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated August 2022 was submitted with the DA. The parties agree, and I am satisfied, that the report's conclusion that "the proposed works will have an acceptable impact on the Heritage Conservation Area" is satisfactory in relation to the provisions of cl 5.10 of the WLEP. 2. The provisions of cl 5.21 of the WLEP concern flood planning. The subject site is within the flooding planning area (as identified in the Woollahra Municipal Council Paddington Floodplain Risk Management Study 2019. The DA proposes excavation of a basement for car parking and other works such as a lift and storage areas. The parties have confirmed, and I am satisfied, that the design of the proposed development is consistent with all the requirements listed in cl 5.21(2) and those matters listed in cl 5.21(3) of the WLEP have been considered in the assessment of the proposed development. A Flood Risk Management Report has been provided by the applicant and its recommendations have been included as requirements to be satisfied under the parties' agreed condition A.3. Various further conditions of consent relating to the management of flood planning outcomes have been proposed including C.24, E.11, E.29, F.5, H.6, and I.7. 3. The provisions of cl 6.1 of the WLEP concern acid sulfate soils. The subject site is not classified as having acid sulfate soils, and therefore the provisions of cl 6.1 of WLEP are not engaged. 4. The provisions of cl 6.2 of the WLEP concern earthworks, and the proposed development includes excavation of a basement for car parking and other works such as a lift and storage areas. The parties have confirmed, and I am satisfied, those matters identified in cl 6.2(3) of WLEP have been considered, noting that the amendments to the DA satisfactorily resolve the initial contentions raised by council. A Geotechnical and Hydrogeological Monitoring and Contingency Plan has been provided and is incorporated into condition A.3. Various conditions of consent relating to the management of earthworks have been proposed including C.18, D.10, E.26, E.28, and F.5. 5. The provisions of cl 6.15 of the WLEP concern stormwater management and the proposed development will connect to the Respondent's existing stormwater drainage system. The parties agree, and I am satisfied, that the proposed development is designed to achieve the outcomes identified under the provisions of cl 6.15(3)(a) to (c). Various conditions of consent relating to stormwater management have been imposed. 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant's amended DA is accompanied by a BASIX certificate (Certificate No A466471 prepared by Sustain Build Projects dated 19 August 2022) which is consistent with the amended DA. 2. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) the parties have advised, and I am satisfied, that the subject site has been used historically for residential purposes, and there is no proposed change of use, and therefore no requirement for any further site investigations to satisfy the provisions of s 4.6 of the Resilience SEPP. Condition C.12 has been imposed in the event that any unexpected finds are uncovered. 3. The parties submit, and I am satisfied, that the DA as amended has considered and addressed the provisions in Woollahra Development Control Plan 2015 (the DCP) such that the controls in those chapters are met or if they are not met they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act: 1. Part A: Introduction and Administration 2. Part B: General Residential; 3. Part C: Heritage Conservation Areas; and 4. Part D: General Controls for All Development. 1. Having considered the advice of the parties provided above at [8], I am satisfied that: 1. the applicants' DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and 3. approval of the proposed development is in the public interest. 1. Further, 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. 2. 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. 3. 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. 4. The Court notes that: 1. The applicant's amended DA is accompanied by a BASIX certificate (Certificate No A466471 prepared by Sustain Build Projects dated 19 August 2022) 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away, in the agreed sum of $9,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of this judgment. 2. The Applicant's written request pursuant to cl 4.6 of Woollahra Local Environmental Plan 2014 seeking to vary the development standard in relation to the height of buildings in cl 4.3 in Woollahra Local Environmental Plan 2014 is upheld. 3. The appeal is upheld. 4. Development Application DA2022/350/1 for extensive alterations and additions to the existing dwelling including new subterranean basement level accommodating car lift, turntable and storage and new swimming pool with associated landscaping on Lot 13 in DP 1111463 and Lot 14 in DP 954 known as 23 Elizabeth Street, Paddington, is approved subject to the conditions in accordance with Annexure "A". G Kullen Acting Commissioner of the Court ********** Annexure A 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: 21 July 2023