Land and Environment Court New South Wales Medium Neutral Citation: Natoli v Woollahra Municipal Council [2024] NSWLEC 1102 Hearing dates: Conciliation conference held on 31 January 2024 Date of orders: 12 March 2024 Decision date: 12 March 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The Applicant is directed to file the amended Modification Application DA338/2015/3 with the Court within 7 days of this order. (2) The appeal is upheld. (3) Development Consent DA338/2015 is modified by consent to Modification Application DA338/2015/3, in the terms set out in Annexure A. (4) Development Consent DA338/2015 is subject to the consolidated conditions as modified by the Court and described in Annexure B. Catchwords: MODIFICATION APPLICATION – alterations and addition to an approved residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 4.66, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 98, 102, 113 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Housing) 2021 Woollahra Local Environmental Plan 2014, cll 5.10, 6.2, 6.9, Sch 5, Pt 1 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015 Woollahra Community Participation Plan 2023 Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Jason Natoli (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers Lindsay Taylor Lawyers File Number(s): 2023/333192 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Modification Application DA338/2015/3 (the MA) by Woollahra Municipal Council (hereafter the Council), which relates to alterations and additions to an existing and approved residential flat building (RFB) on Lot 1 Deposited Plan 342033, also known as 57A Fitzwilliam Road, Vaucluse (the site). 2. The original Development Consent DA338/2015 (the Consent) was granted by Council on 12 May 2023 and then subject to several approved modifications. The MA under appeal was lodged with Council on 31 July 2023. 3. The Applicant appealed against the deemed refusal, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The MA seeks amendment to the Consent by increasing basement excavation for functional use of the RFB, reducing number and reconfiguration of units on upper levels, and amending the building articulation. 4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), starting with an onsite view. 5. After an agreed adjournment of the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the Court, as described in Annexure A. 6. Pursuant to s 34(3)(a) of the Court 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, pursuant to s 34(3) of the Court Act. The parties' decision involves the Court exercising its power, after assessing s 4.55(2) of the EPA Act, to amend the Consent, as described in Annexure A, with consolidated conditions for the Consent provided in Annexure B. 7. The requirements of s 4.55(2)(a) of the EPA Act are deemed satisfied. The modification is considered to be substantially the same as originally approved under the Consent, specifically with regards to the general built form, and does not result in further environmental impact. 8. The Council confirms that concurrence of relevant authorities is not required, pursuant to s 4.46 of the EPA Act, and that the requirements of s 4.55(2)(b) are not relevant for consideration. 9. It is agreed that the proposed alterations and additions to the approved (RFB) building, resulting in additional conditions of consent, address all relevant jurisdictional requirements, and is consistent with the provisions of the Woollahra Local Environment Plan 2014 (WLEP). The Consent and MA rely on existing use rights, pursuant to s 4.66 of EPA Act, for the approved RFB within the R2 Low Density Residential zoning, that applies to the site. The listed heritage item being a Forest Red Gum (Sch 5, Pt 1, Item I355) contained on the site, which has been considered and is not adversely impacted by the proposed works, pursuant to cll 5.10 and 6.9 of the WLEP. The MA is supported by Geotechnical Reports, prepared by Rapid Geo, dated 18 July 2023 and 7 February 2024, addressing the requirements of cl 6.2(3). 10. In satisfaction of the requirements of s 4.15(1) of the EPA Act, the proposed development, as modified, remains substantially unchanged as assessed in the Consent, and where changes are sought, documents verify compliance and additional conditions are included in the Consent to ensure the relevant requirements of the s 4.15(1) of the EPA Act are appropriately considered. The MA relies on BASIX Certificate No 1409534M_03, dated 15 February 2024 in compliance with the Environmental Planning and Assessment Regulation 2021 (EPA Reg) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The modified and approved RFB is consistent with the requirements of the State Environmental Planning Policy (Housing) 2021 and the Apartment Design Guide, as well as s 102 of the EPA Reg, being supported by a Design Verification Statement, prepared by EMK Architects, dated 16 January 2024. The MA relies on MUSIC (water quality) modelling to demonstrate that the water quality of the Sydney Harbour catchment will not be adversely impacted, pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. The requirements of s 4.55(3) of the EPA Act are addressed. 11. The Council confirms that the notification of the MA was made, pursuant to the requirements of the Woollahra Development Control Plan 2015 and Woollahra Community Participation Plan 2023, with five submissions received. The submissions from residents have been considered in the Council's merit assessment of the MA. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied. 12. I am satisfied, based on the evidence before the Court, that there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. The Council has undertaken the appropriate merit assessment and I have considered the evidence and jurisdictional assessment provided by the parties. The amended Modification Application DA338/2015/3 satisfies the requirements of s 4.55(2) of the EPA Act. 13. All actions relied on by the MA are specific to the site and the Applicant is the owner of the site, pursuant to s 98(1) of the EPA Reg. 14. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 15. The Court notes that: 1. Woollahra Municipal Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA338/2015/3 to rely upon the amended architectural and documents as set out the table below: Reference Description Author/Drawn Date A0003 (Rev.G) Windows Schedule and BASIX EMK Architects 07/02/2024 A0009 (Rev.G) Site Plan A0101 (Rev.G) Floor Plan - Basement A0102 (Rev.G) Floor Plan - Ground A0103 (Rev.G) Floor Plan – Level 01 A0104 (Rev.G) Floor Plan – Level 02 A0105 (Rev.G) Roof Plan A0111 (Rev.G) Driveway Sections A0201 (Rev.G) Elevation – South A0202 (Rev.G) Elevation – West A0203 (Rev.G) Elevation – East A0204 (Rev.G) Elevation – North A0301 (Rev.G) Section 01 A0302 (Rev.G) Section 02 A0303 (Rev.G) Section 03 A0701 (Rev.G) Schedule of Colours and Finishes U23112 SW01 (Rev.E) Stormwater Plans Uber Engineering 06/02/2024 U23112 SW02 (Rev.E) U23112 SW03 (Rev.E) U23112 SW04 (Rev.E) U23112 (Rev.E) U23112 SW06 (Rev.E) U23112, Revision E Stormwater Water Quality Report Uber Engineering 06/02/2024 RG612-GR-1-1 (Rev2) Geotechnical Investigation Report Rapid Geo 07/02/2024 1. The Court orders that: 1. The Applicant is directed to file the amended Modification Application DA338/2015/3 with the Court within 7 days of this order. 2. The appeal is upheld. 3. Development Consent DA338/2015 is modified by consent to Modification Application DA338/2015/3, in the terms set out in Annexure A. 4. Development Consent DA338/2015 is subject to the consolidated conditions as modified by the Court and described in Annexure B. ………………………… Sarah Bish Commissioner of the Court Annexure A (235240, pdf) Annexure B (736862, 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: 12 March 2024