Land and Environment Court New South Wales Medium Neutral Citation: 186 OSHR BH Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1755 Hearing dates: Conciliation conference held on 24 November 2023 Date of orders: 08 December 2023 Decision date: 08 December 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA592/2022, which seeks the demolition of existing structures, tree removal, and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions in Annexure A. (3) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $16,000 payable within 35 days from the date of the final orders. Catchwords: DEVELOPMENT APPLICATION – residential flat building – breach in height and floor space ratio development standards – variation of development standards - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122 State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cll 28, 30 Water Management Act 2000, s 90 Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6 Texts Cited: Apartment Design Guide 2015 Woollahra Development Control Plan 2015 Category: Principal judgment Parties: 186 OSHR BH Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) B Crapis (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/78814 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA592/2022 (the DA) by Woollahra Municipal Council (the Council), which as amended, seeks demolition of existing structures and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill (the site). Background 1. The DA was lodged with Council on 22 December 2022. The original DA was notified to residents, with eight submissions received, and was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act. 3. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties' request, commenced without a site view and was held before me as Duty Commissioner. 4. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended DA seeks: 1. demolition of the existing multi-dwelling development; 2. construction of three new residential flat buildings identified as Buildings A, B and C (Building A containing 14 units, Building B containing 17 units and Building C containing 5 units); and 3. basement parking including 71 carparking spaces with 9 visitor spaces, landscaping and swimming pool. 1. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council's merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA592/2022, with conditions. 2. Pursuant to s 34(3) of the LEC Act, I must 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. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA592/2022, subject to conditions in Annexure A. Jurisdictional prerequisites 1. The proposed basement of the building will potentially intercept groundwater and require dewatering, engaging the Water Management Act 2000 (WMA Act). The DA is supported by the Response to SOFC – Geotechnical, prepared by CEC Geotechnical, dated 2 August 2023, that assesses potential seepage into the basement. Pursuant to s 90 of the WMA Act, an approval to discharge water is required, as described in the conditions of consent. WaterNSW has provided general terms of approval that relate to the proposed development, which are included in the conditions of consent. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed: 1. Woollahra Local Environmental Plan 2014 (WLEP): 1. Pursuant to cl 2.3 of the WLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the WLEP, except for a breach in the cl 4.3 height and cl 4.4 floor space ratio (FSR) development standards, that requires a cl 4.6 request for variation to be sought. 2. The development standard described in cl 4.3 of the WLEP requires a maximum height of 11 m. The DA proposes a maximum height of 14.17 m, representing an exceedance of up to 5%. 3. The FSR development standard described in cl 4.4 of the WLEP requires the FSR to not exceed 1.3:1. The proposed development proposes a maximum FSR of 1.32:1 m, representing an exceedance of 1.6%. 4. The application relies on cl 4.6 written requests to vary the height and FSR development standards, pursuant to cl 4.6 of the WLEP. 5. The height breach relates to balustrading and a portion of the roof form on the proposed building. The cl 4.6 written request provided to the Court explains that the portion of the building resulting in the non-compliance in the height standard does not result in a development that is incompatible with the desired, future character of the surrounding area or results in adverse amenity, including solar access. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk and scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard. 6. The Court must be satisfied to grant consent to the application that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the WLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R3) described in cl 2.3 and cl 4.3 height standard of the WLEP. The breach in the height standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The relevant concerns raised by residents have been considered in the design of the dwelling. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development. 7. The cl 4.6 written request provided to the Court explains that the non-compliance in the FSR standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity, including solar access or views. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk and scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard. 8. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the FSR standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R3) described in cl 2.3 and cl 4.4 height standard of the WLEP. The breach in the FSR standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The relevant concerns raised by residents have been considered in the design of the dwelling. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the FSR standard for the proposed development. 9. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cll 4.3 and 4.4 of the WLEP height and FSR development standards, respectively, should be granted. 1. State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65): 1. The DA proposes development for residential apartments, that engages consideration of the relevant provisions of SEPP 65. 2. Pursuant to cl 28(2)(a) of SEPP 65, the DA was not submitted for the advice of a design review panel. 3. Pursuant to cl 28(2)(b) of SEPP 65, the DA relies on a SEPP 65 Design Verification Statement, prepared by CD Architects, dated 12 December 2022, and the Design Principles Assessment, prepared by CD Architects, dated 28 November 2023. The design quality principles established in SEPP 65 are stated to have been considered and are addressed by the amended design. 4. Pursuant to cl 28(2)(c) of SEPP 65, the compliance table considers the requirements described in the Apartment Design Guide 2015. The relevant considerations are deemed to comply. 5. Pursuant to cl 30(2)(a) of the SEPP 65, the proposed development has had regard and demonstrates design quality principles. 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure): 1. The site has frontage to Old South Head Road, a classified road, engaging s 2.119 of the SEPP Infrastructure. The DA is considered a traffic generating development, also engaging s 2.122. 2. The DA is supported by a Traffic and Environmental Noise Assessment, prepared by Acoustic Noise and Vibration Solutions P/L, dated 14 November 2022. 3. The DA was referred to Transport for NSW, and the general terms of approval issued are considered in the amendments to the development and described in the conditions of consent. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity): 1. The site is located within the Sydney Harbour catchment, engaging Pt 6.2 of the SEPP Biodiversity. 2. The DA is supported by a Statement of Environmental Effects, prepared by GSA Planning, dated December 2022, and a letter on stormwater management, prepared by Civil and Stormwater Engineering Services, dated 27 July 2023. There is no assessed adverse environmental impact to the catchment resulting from the proposed development. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential and documents that support the DA, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6 of the SEPP Resilience. 2. The DA is supported by a Preliminary Site Investigation, prepared by GEC Geotechnical, dated 10 November 2023. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. A BASIX Certificate (1359008M_02), issued on 25 August 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent. 1. Woollahra Development Control Plan 2015 (WDCP): 1. The original DA was publicly notified in accordance with the WDCP, with eight submissions received. The relevant requirements of the WDCP have been considered in Council's merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent. 1. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA592/2022 can be granted consent. 4. 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. 5. The Court notes that: 1. Woollahra Municipal Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA592/2022 as follows: Tab Document Date 1. Amended architectural plans prepared by CDA architects (Rev D) Individually as dated below Drawing No. Title Rev Date DA1001 Cover Sheet D 16 August 2023 DA1002 Compliance Table D 16 August 2023 DA1003 Unit Schedule D 16 August 2023 DA1004 BASIX Commitment B 16 August 2023 DA1005 Site Plan D 16 August 2023 DA1007 Demolition Plan D 16 August 2023 DA1102 Ground Floor Plan D 16 August 2023 DA1103 Level 01 Floor Plan D 16 August 2023 DA1104 Level 02 Floor Plan D 16 August 2023 DA1105 Level 03 Floor Plan D 16 August 2023 DA1106 Level 04 Floor Plan D 16 August 2023 DA1107 Level 05 Floor Plan D 16 August 2023 DA1108 Level 06 Plan D 16 August 2023 DA1109 Roof Level Building C Floor Plan D 16 August 2023 DA2001 Building Elevations D 16 August 2023 DA2002 Building Elevations D 16 August 2023 DA2011 Building A South Elevation D 16 August 2023 DA2012 Building A West Elevation D 16 August 2023 DA2013 Building A North Elevation D 16 August 2023 DA2014 Building A East Elevation D 16 August 2023 DA2021 Building B South Elevation D 16 August 2023 DA2022 Building B West Elevation C 28 July 2023 DA2023 Building B North Elevation C 28 July 2023 DA2024 Building B East Elevation D 16 August 2023 DA2031 Building C South Elevation D 16 August 2023 DA2032 Building C West Elevation D 16 August 2023 DA2033 Building C North Elevation D 16 August 2023 DA2034 Building C East Elevation C 28 July 2023 DA3001 Building Sections D 16 August 2023 DA3002 Landscape Section D 16 August 2023 DA3011 Building A Sub-Level Section D 16 August 2023 DA3032 Ramp Section C 28 July 2023 DA3101 Building Detail Section C 28 July 2023 DA5001 Pre + Post Adaptable Unit Layout D 16 August 2023 DA5002 Pre + Post Adaptable Unit Layout C 28 July 2023 DA5003 Pre + Post Adaptable Unit Layout C 28 July 2023 DA5004 Pre + Post Adaptable Unit Layout B 28 July 2023 DA6001 Shadow Diagrams D 16 August 2023 DA6021 Solar Study - 21 June 9.00am D 16 August 2023 DA6022 Solar Study - 21 June 10.00am D 16 August 2023 DA6023 Solar Study - 21 June 11.00am D 16 August 2023 DA6024 Solar Study - 21 June 12.00pm D 16 August 2023 DA6025 Solar Study - 21 June 1.00pm D 16 August 2023 DA6026 Solar Study - 21 June 2.00pm D 16 August 2023 DA6027 Solar Study - 21 June 3.00pm D 16 August 2023 DA6028 Solar Study Table D 16 August 2023 DA6031 COS Solar Study - 9.00am B 28 July 2023 DA6032 COS Solar Study - 10.00am B 28 July 2023 DA6033 COS Solar Study - 11.00am B 28 July 2023 DA6041 Unit AG01 Solar Study B 28 July 2023 DA6043 Unit A101 Solar Study B 28 July 2023 DA6044 Unit A103 Solar Study B 28 July 2023 DA6045 Unit A201 Solar Study C 16 August 2023 DA6046 Unit A202 Solar Study B 28 July 2023 DA6047 Unit A203 Solar Study B 28 July 2023 DA6048 Unit A301 Solar Study C 16 August 2023 DA6049 Unit A302 Solar Study B 28 July 2023 DA6050 Unit A303 Solar Study B 28 July 2023 DA6051 Unit A401 Solar Study C 16 August 2023 DA6052 Unit A402 Solar Study B 28 July 2023 DA6061 Unit B104 Solar Study B 28 July 2023 DA6062 Unit B204 Solar Study B 28 July 2023 DA6063 Unit B205 & 305 Solar Study B 28 July 2023 DA6064 Unit B206 Solar Study B 28 July 2023 DA6065 Unit B207 Solar Study B 28 July 2023 DA6066 Unit B304 Solar Study B 28 July 2023 DA6067 Unit B306 Solar Study B 28 July 2023 DA6068 Unit B307 Solar Study B 28 July 2023 DA6069 Unit B403 Solar Study B 28 July 2023 DA6070 Unit B404 Solar Study B 28 July 2023 DA6071 Unit B405 Solar Study B 28 July 2023 DA6072 Unit B406 Solar Study B 28 July 2023 DA6073 Unit B501 Solar Study B 28 July 2023 DA6074 Unit B502 Solar Study B 28 July 2023 DA6081 Unit C308 Solar Study B 28 July 2023 DA6082 Unit C309 Solar Study B 28 July 2023 DA6083 Unit C407 Solar Study B 28 July 2023 DA66084 Unit C408 Solar Study B 28 July 2023 DA6085 Unit C503 Solar Study B 28 July 2023 DA6086 Unit C503 Solar Study B 28 July 2023 DA7001 GFA Calculation D 16 August 2023 DA7002 GFA Calculation D 16 August 2023 DA7003 GFA Calculation D 16 August 2023 DA7004 GFA Calculation D 16 August 2023 DA7011 Solar Access Plan D 16 August 2023 DA7021 Ventilation Diagrams D 16 August 2023 DA7031 Streetscape 3D View D 16 August 2023 DA7032 Streetscape 3D View D 16 August 2023 DA7033 Streetscape 3D View D 16 August 2023 DA7034 Rear 3D View C 28 July 2023 DA7037 DSZ - ADG Calculation (7%) C 28 July 2023 DA7039 DSZ - DCP Calculation B 28 July 2023 DA7040 Communal Open Space Diagram D 16 August 2023 DA7041 Finishes Schedule D 16 August 2023 DA7051 LEP Height Blanket D 16 August 2023 DA7052 LEP Height Blanket D 16 August 2023 DA7053 LEP Height Blanket D 16 August 2023 DA7054 LEP Height Blanket D 16 August 2023 DA7061 Front Setback A 16 December 2022 DA7062 Rear Setback A 16 December 2022 DA7071 Cut & Fill Diagram - Sheet 1 D 16 August 2023 DA7072 Cut & Fill Diagram - Sheet 2 D 16 August 2023 DA7073 Cut & Fill Diagram - Sheet 3 D 16 August 2023 DA7074 Cut & Fill Diagram - Sheet 4 D 16 August 2023 DA7075 Cut & Fill Diagram - Sheet 5 D 16 August 2023 DA7076 Cut & Fill Diagram - Sheet 6 D 16 August 2023 DA7081 Privacy Diagrams C 28 July 2023 DA7082 Wayfinding Diagram C 16 August 2023 DA7091 Car Space & Condenser Layout B 28 July 2023 2. Landscape drawings prepared by Myles Baldwin Design (Rev D) Individually as dated below Drawing No. Title Rev Date 697_DA_01 Cover Page D 24 August 2023 697_DA_02 Plant Schedule D 24 August 2023 697_DA_03 Softworks Zoning D 24 August 2023 697_DA_04 Existing Tree Plan D 24 August 2023 697_DA_05 Existing Tree Report D 24 August 2023 697_DA_06 Tree Masterplan D 24 August 2023 697_DA_10 Landscape Plan Ground Floor D 24 August 2023 697_DA_11 Landscape Plan Level 01 D 24 August 2023 697_DA_11 Landscape Plan Level 01 D 24 August 2023 697_DA_12 Landscape Plan Level 02 A D 24 August 2023 697_DA_13 Landscape Plan Level 02 B D 24 August 2023 697_DA_14 Landscape Plan Level 03 A D 24 August 2023 697_DA_15 Landscape Plan Level 03 B D 24 August 2023 697_DA_16 Landscape Plan Level 04 D 24 August 2023 697_DA_17 Landscape Plan Level 05 D 24 August 2023 697_DA_18 Landscape Plan Level 06 D 24 August 2023 697_DA_45 Typical Details D 24 August 2023 697_DA_70 General Specification D 24 August 2023 3. Landscape statement prepared by Myles Baldwin Design 28 August 2023 4. Site analysis prepared by CDA architects (Rev D) Individually as dated below Drawing No. Title Rev Date DA1011 Site Analysis - Transport, Amenity & Network Analysis A 16 December 2022 DA1012 Site Analysis Plan B 28 July 2023 DA1013 Site Analysis – Built Form B 28 July 2023 DA1014 Site Analysis – Isometric Views C 28 July 2023 DA1014.1 Isometric Views A 28 July 2023 DA1015 Residential Flat Building A 16 December 2022 DA1016 Site Analysis -Opportunities & Constraints A 16 December 2022 DA1017 Site Analysis - Existing Public Stairway Analysis A 16 December 2022 DA1018 Site Analysis - Proposed Public Stairway Analysis A 16 December 2022 5. Structural drawings prepared by Capital Engineering Consulting 4 July 2023 Drawing No. Title Rev Date S0000 Cover Sheet B 20 July 2023 S0101 Shoring And Bulk Excavation Plan C 20 July 2023 S0105 Shoring Wall Elevations - Sheet 1 C 20 July 2023 S0106 Shoring Wall Elevations - Sheet 2 B 20 July 2023 S0110 Shoring Sections - Sheet 1 B 20 July 2023 S0111 Shoring Sections - Sheet 2 B 20 July 2023 S0120 Shoring Wall Details - Sheet 1 B 20 July 2023 6. Stormwater concept plans prepared by C & S Engineering Services Pty Ltd (Rev C) Individually as dated below Drawing No. Title Rev Date 000 Cover Sheet Plan C 27 July 2023 101 Stormwater Concept Plan Basement Sub Level Sheet 1 of 2 G 23 August 2023 102 Stormwater Concept Plan Basement Sub Level Sheet 1 of 2 B 27 July 2023 103 Stormwater Concept Plan Ground Level E 23 August 2023 104 Stormwater Concept Plan Level 1 E 23 August 2023 107 On-Site Detention Details and Calculation Sheet 1 Of 2 C 27 July 2023 107.1 On-Site Detention Details and Calculation Sheet 2 Of 2 B 27 July 2023 108 Catchment Plan and Music Results B 27 July 2023 109 Sediment & Erosion Control Plan & Details A 21 November 2022 110 Miscellaneous Details Sheet B 27 July 2023 111 Upstream Catchment Plan Contours Mapping C 23 August 2023 112 OSD Catchment Plan And Drains Results A 27 July 2023 7. Stormwater design statement prepared by C & S Engineering Services Pty Ltd 28 August 2023 8. Stormwater drawing issue register prepared by C & S Engineering Services Pty Ltd - 9. Survey plan prepared by Geometra Consulting 21 September 2022 10. Traffic letter prepared by CJP Consulting engineers 24 August 2023 11. Traffic without prejudice letter prepared by CJP Consulting engineers 19 September 2023 12. Response to council's excavation comments prepared by GSA Planning 28 August 2023 13. BASIX stamped amended architectural plans prepared by CDA architects (Rev D) 25 August 2023 14. BASIX certificate (certificate no. 1359008M_02) 25 August 2023 15. NatHERS certificate no. 0008325440 25 August 2023 16. Clause 4.6 Request – Floor Space Ratio (FSR) prepared by GSA Planning September 2023 17. Clause 4.6 Request – Height prepared by GSA Planning September 2023 18. Amended waste management plan prepared by Dickens Solutions Pty Ltd June 2023 19. Environmental response to statement of facts and contentions prepared by CEC Geotechnical 20 July 2023 20. Preliminary site investigation report prepared by CEC Geotechnical 8 June 2023 21. Shoring design report prepared by Capital Engineering Consultants 24 July 2023 22. Letter prepared by AA Power Engineering in relation to substation location 1 August 2023 23. Response to SOFAC - geotechnical report prepared by CEC Geotechnical (the geotechnical response to SOFAC) comprising: 2 August 2023 24. Risk assessment description (Appendix A of the geotechnical response to SOFAC) 2 August 2023 25. Shoring drawing and settlement calculation (Appendix B of the geotechnical response to SOFAC) 20 July 2023 26. Hydrogeological assessment and dewatering management plan (Appendix C of the geotechnical response to SOFAC) comprising: 20 July 2023 (i) Geotechnical investigation report prepared by CEC Geotechnical (Appendix A of the hydrogeological assessment and dewatering management plan) comprising: a. Site plan with borehole locations dated 11 November 2022 (Appendix A) b. Borehole logs and DCP Test Results dated 11 November 2022 (Appendix B) 20 July 2023 c. Point load test results dated 21 November 2022 (Appendix C) d. Laboratory test results dated 15 November 2022 (Appendix D) e. Site classification general information (Appendix E) (ii) Additional information for ground water level monitoring report (Appendix B of the hydrogeological assessment and dewatering management plan) 20 July 2023 (iii) Dewatering management plan (Appendix C of the hydrogeological assessment and dewatering management plan) comprising: a. Site plan showing potential discharge point (stormwater pits) dated 20 July 2023 (Appendix A) 20 July 2023 b. Laboratory test results dated 6 March 2023 (Appendix B) c. WaterNSW groundwater guidelines (Appendix C) 27. Arboricultural assessment/tree root mapping report prepared by TALC 12 September 2023 28. Arboricultural impact assessment prepared by TALC 12 September 2023 29. Owners consent letters 23 September 2022 20 September 2023 30. Statement of compliance access for people with a disability prepared by Accessible Building Solutions 20 October 2023 31. Response letter prepared by C & S Engineering Services 27 July 2023 32. Design verification statement prepared by CDA Architects 28 November 2023 1. The Applicant has filed the amendments to the Development Application DA592/2022 with the Court on 24 November 2023 and 29 November 2023. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA592/2022, which seeks the demolition of existing structures, tree removal, and construction of a residential flat building with basement car parking, landscaping and a swimming pool on Strata Plan 11821, also known as 186-192 Old South Head Road, Bellevue Hill, is determined by the grant of consent, subject to the conditions in Annexure A. 3. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $16,000 payable within 35 days from the date of the final orders. Sarah Bish Commissioner of the Court 23.78814 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: 08 December 2023