Land and Environment Court New South Wales Medium Neutral Citation: Peponis-Brisimis v Woollahra Municipal Council [2024] NSWLEC 1075 Hearing dates: Conciliation conference held on 15 and 16 February 2024 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The Applicant's written request, prepared by Tony Moody, dated 15 February 2024, and made pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to vary the height development standard in cl 4.3 of the WLEP, is upheld. (2) The appeal is upheld. (3) Development Application DA516/2022/1, as amended, seeking alterations and additions to an existing two-storey dwelling, including an additional storey at Lot B Deposited Plan 360514, also known as 4 Princes Avenue, Vaucluse is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – breach in height development standard – written request for variation in development standard – 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, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Div 2, ss 6.6, 6.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.6 Texts Cited: Woollahra Community Development Participation Plan 2023 Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Suzane Peponis-Brisimis (Applicant) Woollahra Municipal Council Representation: Counsel: B Dyer (Solicitor) (Applicant) P Rigg (Solicitor) (Respondent) Solicitors: Maddocks (Applicant) Peter Rigg Solicitor and Barrister (Respondent) File Number(s): 2023/217368 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA516/2022/1 by Woollahra Municipal Council (the Council) seeking alterations and additions to an existing two-storey dwelling, including adding an additional level at Lot B Deposited Plan 360514, also known as 4 Princes Avenue, Vaucluse (hereafter the site). Background 1. Development Application DA516/2022/1 (the DA) was lodged with Council on 22 November 2022, with 14 written submissions received during the notification period. 2. The DA was submitted to the Woollahra Local Planning Panel (WLPP), and after review, the DA was refused, with the determination made on 1 June 2023. 3. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view, and then held in person. Seven oral submissions from residents, relating to surrounding residences, were heard at the start of the conciliation. The issues raised by these residents was consistent with the written submissions provided during the notification period, and generally relate to view, solar amenity, bulk and precedence. 5. The Council agreed for the Applicant to amend the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 6. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the resident objectors have been considered in the merit assessment. The Council confirms it has delegation from the WLPP to enter into the agreement. 7. 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 exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA516/2022/1, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been specifically considered and are considered satisfied: 1. Woollahra Local Environmental Plan 2014 (WLEP): 1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone. 2. The amended application is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the WLEP, although does not numerically comply with cl 4.3. 3. The height development standard described in cl 4.3 of the WLEP requires buildings to be no higher than 9.5m. The DA seeks a maximum building height of 11.42m, 20% above the height development standard. The amended application therefore relies on a cl 4.6 written request, seeking a variation of the (non-compliant) height development standard, made pursuant to cl 4.6 of the WLEP. 4. The cl 4.6 written request that supports the DA explains that the non-compliance of the height standard does not result in a development that is incompatible with the character of the surrounding area, is consistent with the desired future character of the local area (described in B1.9.2 of the Woollahra Development Control Plan 2015) and does not result in adverse amenity to adjoining properties. The land slopes towards the south and the proposed development responds to the slope of the land and existing building. The height variation sought, will not be unsympathetically viewed in the streetscape and does not result in an uncharacteristic bulk/scale. It is observed that the existing building relies on significant setbacks, which are also reflected in the amended design. 5. According to the cl 4.6 written request, the proposed development is consistent with the R2 zone objectives in cl 2.3 of the WLEP and the height development standard objectives, described in cl 4.3. 6. The Court must be satisfied, that the requirements set out in cl 4.6 of the WLEP are addressed to vary the height development standard as proposed. 7. Having reviewed the cl 4.6 written request and evidence of the experts relevant to the amended design, I am satisfied that the written request seeking variation of the height development standard sufficiently addresses the requirements of cl 4.6 of the WLEP. The evidence describes relevant environmental planning grounds to justify the non-compliance in the standard and strict compliance of the standard is unnecessary. The proposed building form responds appropriately to the slope of the land, reflecting other recent developments in the streetscape and is consistent with the desired future character for the area relevant to site. The proposed development is consistent with the objectives of the zone (R2), in addition to the height (cl 4.3) standard objectives. 8. The breach in the height development standard will not cause undue concern to (existing and future) adjoining residents, the streetscape or future residents of the site. The height breach relates to the proposed third storey, which has been setback substantially from the streetscape and adjoining properties to address amenity concerns. I accept the explanation in the cl 4.6 written request and agree with the expert evidence, that assesses no adverse amenity impact to adjoining properties resulting from the part of the building that causes the height breach. View corridors are maintained and there is no evidence of adverse solar impact to living room windows or to the private open space on adjoining properties, resulting from the breach in building height. 9. The proposed development is assessed as being 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. 10. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cl 4.3 development standard should be granted. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX): 1. Pursuant to the requirements established in s 27 of the EPA Reg, a BASIX Certificate (A1378613_03) issued on 15 February 2024 is relevant to the proposed development, as amended, and is prepared consistent with the requirements of the SEPP BASIX. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity): 1. The site is located within the catchment of Sydney Harbour, and subject to the requirements of Part 6.2, Division 2 of the SEPP Biodiversity. The parties agree that the DA relies on an existing stormwater system, which together with the conditions of consent, demonstrate that stormwater discharged from the site can be appropriately managed to protect water quality, pursuant to ss 6.6 and 6.7 of the SEPP Biodiversity. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed. 1. Woollahra Development Control Plan 2015 (WDCP): 1. The relevant requirements of the WDCP are generally complied with based on the amended plans, supporting documents to the DA and the conditions of consent. 2. The original application was publicly notified in accordance with the WDCP and the Woollahra Community Development Participation Plan 2023. The 14 submissions received during the notification period have been considered in Council's merit assessment of the DA, and where appropriate, issues raised have been addressed. 3. With regards to the potential for view loss, as raised by the resident at 36 Kings Road, after visual inspection and consideration of the proposed development, the experts agree that there is no view loss to iconic features, and the proposed additional storey does not impede existing view corridors. 4. With regards to the potential for solar impact to windows and the private open spaces of adjoining properties, after review of the amended DA, the experts agree that any solar impact resulting from the height breach is limited to the road reserve, which is not significant. 5. The Council agrees that the contentions that relate to the WDCP are resolved by amendments to the DA and the provision of documents that support the DA. The proposed development is assessed as not causing unsatisfactory amenity impacts to adjoining properties or the streetscape. 1. Pursuant to s 23 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site. Grant of consent 1. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert report, the parties confirm 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. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to orders sought and that Development Application DA516/2022/1, as amended, should be determined by the grant of consent. 3. As the parties' agreement 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. 4. The Court notes that: 1. The Woollahra Municipal Council, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA516/2022/1, as follows: 1. Architectural plans, dated 8, 14 and 15 February 2024 as described in Condition A.3 of Annexure A, 2. BASIX Certificate A1378613_03, dated 15 February 2024, and 3. Amended Clause 4.6 request seeking variation of height development standard, dated 15 February 2024. 1. The Applicant has filed the amendments to the DA on 15 February 2024. 1. The Court orders that: 1. The Applicant's written request, prepared by Tony Moody, dated 15 February 2024, and made pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to vary the height development standard in cl 4.3 of the WLEP, is upheld. 2. The appeal is upheld. 3. Development Application DA516/2022/1, as amended, seeking alterations and additions to an existing two-storey dwelling, including an additional storey at Lot B Deposited Plan 360514, also known as 4 Princes Avenue, Vaucluse is determined by the grant of consent, and subject to the conditions set out in Annexure A. S Bish Commissioner of the Court 23.217368 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: 27 February 2024