Land and Environment Court New South Wales Medium Neutral Citation: Luci v Council of the Municipality of Woollahra [2023] NSWLEC 1632 Hearing dates: Conciliation conference held on 29, 30 August 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA459/2022 for the demolition of the existing structures on the site and construction of a new multi-storey dwelling house, swimming pool and landscaping on the land at 72 Beresford Road, Bellevue Hill NSW 2023, formally known as Lot 10, Section 5 Deposited Plan 5932 and Lot B Deposited Plan 406899, subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPEAL – demolition and construction new dwelling house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 7.12, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy Amendment (Water Catchments) 2022 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, s 6.65 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Woollahra Local Environmental Plan 2014, cl 1.8A, 4.3, 4.6, 5.10, 6.1, 6.2 Category: Principal judgment Parties: Jade Luci (Applicant) Council of the Municipality of Woollahra (Respondent) Representation: Counsel: M Parrino (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Project Lawyers Pyt Ltd (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/75858 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Woollahra Municipal Council (the Council) of DA459/2022 (the Development Application) for demolition of existing dwelling house and associated structures and construction of a new multi-storey dwelling house, excavation, swimming pool to the front and landscaping (proposed development) at 72 Beresford Rd, Bellevue Hill; being land comprising Lot 10, section 5 DP 5932 and Lot B DP 406899 (the site). 2. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference. 3. 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 and which addressed the Council's contentions. This decision involved the Council approving an application to amend the Applicant's plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Development Application as amended subject to conditions. 4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement filed on 1 September 2023 (the Statement). 6. Regarding jurisdiction and taking into account the parties' advice in the Statement, I am satisfied in regard to the following relevant matters that apply. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) 1. The site is not identified as a contaminated site, nor is it in the vicinity of any listed sites. The proposed development has a long standing residential use and will continue to be used for residential purposes. The Council is satisfied of the matters set out in s 4.6 of the SEPP Resilience and Hazards. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) Chapter 2 Vegetation in non-rural areas 1. The provisions of Ch 2 Vegetation in non-rural areas require the consideration of the proposal on tree impacts. The parties consider that, subject to the imposition of conditions, the proposal is satisfactory with regard to Ch 2 Vegetation in non-rural areas. Chapter 10 - Sydney Harbour Catchment. 1. The site is located within the Sydney Harbour Catchment. 2. At the time of the lodgement of the Development Application, it was subject to the provisions of the Biodiversity and Conservation SEPP, as they applied on 23 May 2022. At that time, Ch 10 of the Biodiversity and Conservation SEPP contained provisions relating to the Sydney Harbour Catchment. 3. On 21 November 2022, the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments SEPP) came into force and transferred the provisions in Chs 6-12 of the Biodiversity and Conservation SEPP, to other areas within the SEPP. 4. Pursuant to s 6.65 of the Biodiversity and Conservation SEPP a development application that was lodged but not finally determined before the commencement of the Water Catchments SEPP is subject to the former provisions of the Biodiversity and Conservation SEPP, apply. Therefore, the provisions of Ch 10 as they applied prior to 21 November 2022 apply to this development application. 5. Although the site is located within the Sydney Harbour Catchment, it is outside the Foreshores and Waterways Area of the catchment. The parties consider that the proposal is satisfactory in terms of the applicable planning principles for land located within the Sydney Harbour Catchment in terms of not having any potential for adverse visual impacts upon Sydney Harbour and adjoining foreshore areas. Woollahra Local Environmental Plan 2014 (WLEP 2014) 1. The proposal is for a new dwelling house which is permissible with consent within the applicable R2 Low Density Residential zone. Land Use Table The objectives of the R2 Low Density Residential zone 1. The parties consider the proposal to be consistent with the objectives of the R2 Low Density Residential zone. Clause 4.3: Height of Buildings 1. Clause 4.3 limits development to a maximum height of 9.5m. Two minor sections of the proposal exceed the height of buildings development standard. The parties agree and the Court accepts that the revised written request that has been prepared pursuant to cl 4.6 of WLEP 2014 is well-founded and is upheld in accordance with the parties' decision. Clause 5.10: Heritage Conservation 1. Clauses 5.10(2) and 5.10(4) require the consent authority to the effect of works proposed to a heritage item, building, work, relic or tree within a heritage conservation area or new buildings or subdivision in a conservation area or where a heritage item is located. The site is not heritage affected and the parties consider the amended proposal is satisfactory with respect to cl 5.10 of WLEP 2014. Clause 6.1: Acid Sulfate Soils 1. Clause 6.1 requires the Council to consider any potential acid sulfate soil affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage. The site is within a Class 5 area as specified in the Acid Sulfate Soils Map. The proposed works do not involve the potential to lower the water table below 1m Australian Height Datum on any land within 500m of a Class 1, 2 and 3 land classifications. Accordingly, a preliminary assessment is not considered to be required. Clause 6.2: Earthworks 1. Clause 6.2(1) requires the consent authority to ensure that any earthworks and associated groundwater dewatering will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. In deciding whether to grant consent for earthworks and associated groundwater dewatering, the consent authority must consider the following matters described under cl 6.2(3): (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity and structural integrity of surrounding properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. The proposed amount of excavation has been reduced in the amended proposal and the Applicant will be reusing some of the excavated sandstone as part of the approved development. 2. The Council's development engineer has raised no objection to the extent of the proposed excavation in terms of geotechnical and hydrogeological issues subject to recommended conditions of consent. 3. The Council's consultant arborist considers the proposal to be satisfactory in terms of tree impacts subject to conditions. Conditions of consent deal with the times and method of excavation and dust mitigation. Amendment of WLEP 2014 1. Public Exhibition commenced on 10 August 2022 for new floor space ratio (FSR) development standards for low density residential development and urban greening requirements for all residential development. WLEP 2014 was amended on 14 July 2023 and a FSR development standard now applies to dwelling houses in the R2 zone. 2. Due to the savings provision set out in cl 1.8A(2), the FSR development standard does not apply to the Development Application. Contribution Plan 1. Section 7.12 Contributions Plan of the EPA Act is applicable. A 1% levy (of the total cost of works) applies. With a cost of works of approximately $8,507,938, a payment of $85,079 would be required by condition to be used for a variety of works as outlined in the s 7.12 Contributions Plan. Notification 1. The Development Application was advertised and notified from 16 November and 1 December 2022. One submission was received from the immediate neighbour. The neighbour and his architect attended the s 34AA site inspection and allowed the Court into their property. The development site and surrounding neighbourhood were inspected from the neighbour's dwelling to explain their concerns which assisted the Court and the parties in considering the issues in this matter. EPA Act 1. The parties confirm and the Court accepts that all of the matters contained in s 4.15 of the EPA Act that are of relevance to the proposed development have been taken into consideration, and the Development Application, as amended, is acceptable subject to conditions. Conclusion 1. For these reasons and based on the evidence before me and my observations and oral submissions heard on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 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. 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. Notations 1. The Court notes that: 1. The Respondent agrees to the Applicant amending Development Application No. DA459/2022 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to include the following plans and documents, which were provided to the Court on 31 August 2023: Reference Description Author/Drawn Dates DA.00 Rev E Cover page 29/08/2023 DA.01 Rev E Master plan 29/08/2023 DA.02 Rev E Site analysis 29/08/2023 DA.03 Rev E Demolition plan 29/08/2023 DA.04 Rev E 3D – Massing Envelope 29/08/2023 DA.05 Rev E Design Response – Site Controls 29/08/2023 DA.05.1 Rev E Floorplate 3D Diagram 29/08/2023 DA.10 Rev E Site plan/roof plan 29/08/2023 DA.11 Rev E Proposed Level 1 29/08/2023 DA.12 Rev E Proposed Level 2 29/08/2023 DA.13 Rev E Proposed Level 3 Rob Mills Architecture 29/08/2023 DA.14 Rev E Proposed Level 4 29/08/2023 DA.20 Rev E Proposed Elevations 1 29/08/2023 DA.21 Rev E Proposed Elevations 2 29/08/2023 DA.30 Rev E Proposed Sections 1 29/08/2023 DA.31 Rev E Proposed Sections 2 29/08/2023 DA.32 Rev E Proposed Sections 3 29/08/2023 DA.33 Rev E Proposed Sections 4 29/08/2023 DA.40 Rev E Shadow Diagrams 9AM 21st June 29/08/2023 DA.41 Rev E Shadow Diagrams 12PM 21st June 29/08/2023 DA.42 Rev E Shadow Diagrams 3PM 21st June 29/08/2023 DA.90 Rev E Materials and Finishes 29/08/2023 Landscape DA documentation – Rev 05 30/08/2023 DA_01 Rev 05 30/08/2023 DA_02 Rev 05 Landscape plans Wyer & Co 30/08/2023 DA_03 Rev 05 30/08/2023 DA_04 Rev 05 30/08/2023 Arborist Impact Assessment (AIA) AIA-LUC 06/23 Rev A NSW Trees 14/06/2023 22MB8947, Issue E Stormwater Management Plans United Consulting Engineers 28/08/2023 E25566.G04_Rev1 Geotechnical Investigation Report EI Australia 29/06/2023 22MB8947, Issue B General Notes United Consulting Engineers 28/08/2023 Shoring Plan 28/08/2023 E25566.G14 Site Specific Risk Assessment EI Australia 29/06/2023 V5A Clause 4.6 Variation Statement CPW 30/08/2023 1327710s_06 BASIX Certificate Ecological Design 30/08/2023 #HR-OBJ8Z7-08 NatHERS Certificate Ecological Design 30/08/2023 Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA459/2022 as amended, for the demolition of the existing structures on the site and construction of a new multi-storey dwelling house, swimming pool and landscaping on the land at 72 Beresford Road, Bellevue Hill NSW 2023, formally known as Lot 10, Section 5 Deposited Plan 5932 and Lot B Deposited Plan 406899, subject to the conditions contained in Annexure A. ………………………. L Byrne Acting Commissioner of the Court Annexure A (655949, 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: 26 October 2023