Land and Environment Court New South Wales Medium Neutral Citation: Williams v Woollahra Municipal Council [2024] NSWLEC 1105 Hearing dates: Conciliation Conference on 7 February 2024 Date of orders: 12 March 2024 Decision date: 12 March 2024 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to DA587/2022, as amended, for the demolition of the existing dwelling and construction of a new three-storey dwelling house, swimming pool and associated landscaping work at 30A Russell Street Vaucluse 2030 (Lot B of DP 157925) subject to conditions in Annexure A. Catchwords: DEVELOPMENT APPEAL – demolition and construction new three-storey dwelling house – steep land – height of building - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA 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 4.3,4.6 Category: Principal judgment Parties: Nicola Williams (First Applicant) Paul Williams (Second Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: S Kondilios (Solicitor) (Applicant) L Mulligan (Solicitor) (Respondent) Solicitors: Hall and Wilcox (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/223644 Publication restriction: No 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 deemed refusal by Woollahra Council (the Council) of DA587/2022 (the Development Application) , for the demolition of the existing dwelling and construction of a new three-storey dwelling house, swimming pool and associated landscaping work (Proposed Development) at 30A Russell Street Vaucluse 2030, being Lot B of DP 157925 (the Site). 2. The Court arranged a conciliation conference under s 34AA 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 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 consent to the Proposed Development as amended subject to conditions at Annexure A (Amended Application). 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 these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court on 16 February 2024. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council's Statement of Facts and Contentions. 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. Woollahra Local Environmental Plan 2014 1. The site is zoned R2 Low Density Residential pursuant to clause 2.3 of the Woollahra Local Environmental Plan 2014 (WLEP) and the proposed new dwelling house with related structures is permissible with consent in the R2 zone. 2. Clause 4.3 of WLEP – Height of Buildings and the Height of Buildings Map provides a maximum height control for the subject site of 9.5m. The proposed maximum height of the building, at the ridge line of the attic level roof form, at RL48.100, being a building height of 9.805m. The height represents a 3.2% variation to the development standard. 3. A Clause 4.6 Variation request has been submitted pursuant to cl 4.6 of the WLEP (Request). The Request addresses cl 4.6 as it was at the date of the Development Application, noting that cl 4.6 in the WLEP was amended on 1 November 2023. The previous form of cl 4.6 continues in force in respect to the Development Application due to cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006. 4. The Request concludes that strict compliance with the height control in this instance is unreasonable and unnecessary, and that the development is in the public interest as it achieves the objectives of the development standard and the R2 zone. The topography of the site falls steeply away from the street and the parties are agreed that there are sufficient environmental planning grounds to justify the contravention of the development standard. 5. In accordance with the parties agreement, the Court finds that the written request made pursuant to cl 4.6 of the WLEP in relation to a variation to the height of buildings standard, prepared by Chapman Planning Services and dated 6 December 2023, is upheld. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. 2. The Statement of Environmental Effects (SEE) prepared by VOARC dated December 2022 notes that the subject site has historically been used for residential purposes. The SEE further states that the proposed development does not involve the disturbance of soil that would warrant further investigations in accordance with the Contaminated Land Planning Guidelines. 3. The Court is satisfied that SEPP Resilience and Hazards is not engaged and the site is suitable for the proposed use. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The Development Application was lodged but not finally determined prior to 1 October 2023, therefore the repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the Development Application. 2. The proposal is a development that is subject to SEPP BASIX and therefore a BASIX certificate, number 1323682S_02 issued on 13 February 2024, in the addendum to the s 34 Agreement. Woollahra Development Control Plan 2015 1. Compliance with the provisions of the Woollahra Development Control Plan 2015 (WDCP) is not a jurisdictional pre-requisite to the grant of consent. 2. Nonetheless the parties advise that the non-compliances with the WDCP set out in the Respondent's SOFAC have been resolved by the Amended Application. Public participation 1. The Development Application was notified and advertised by the Respondent for a period of 16 days between 25 January 2023 to 9 February 2023. 2. The Respondent received 27 submissions from 18 individuals in response to the notification. The Court was provided with a Bundle of Documents filed on 31 January 2024 containing letters of objection received by Council following the initial notification of the Development Application. 3. The Respondent filed with the Court on 31 January 2024 a list of objectors specifying the people attending the conciliation conference site view to provide oral submissions. 4. At the site view, the Court received oral submissions from a number of neighbouring objectors in Russell Street. The neighbours invited the Court and parties into their properties to assess the perceived view loss and other issues of concern with the Proposed Development. The Court is satisfied that the Proposed Development as amended will not have a material impact on views or privacy of adjourning properties. All the submissions made in response to the notification have been reasonably considered by the parties and the Court and the objectors have been accorded procedural fairness. Conclusion 1. For these reasons, based on the evidence before me, and my observations and submissions received 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 the Respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA587/2022 to rely upon the following further and amended plans and documents as filed with the Court: Reference Description Author Date(s) C3.1 Schedule of Drawings VOARC 7/2/2024 2135: DA001: C3.1 Notes & Legends & BASIX Commitments 7/2/2024 2135: DA101: C3.1 Site Analysis Plan 7/2/2024 2135: DA102: C3.1 Site Plan - Ground 7/2/2024 2135: DA103: C3.1 Site Plan – Entry Level 01 7/2/2024 2135: DA104: C3.1 Demolition Plan 7/2/2024 2135: DA105: C3.1 Excavation and Fill Plan 7/2/2024 2135: DA111: C3.1 Proposed Floor Plan: Ground 7/2/2024 2135: DA112: C3.1 Proposed Floor Plan: Level 01 7/2/2024 2135: DA113: C3.1 Proposed Floor Plan: Attic 7/02/2024 2135: DA114: C3.1 Proposed Floor Plan: Roof 7/2/2024 2135: DA120: C3.1 Landscape Calculation Plan 7/2/2024 2135: DA131: C3.1 Floor Plate Calculation Plan: Ground Floor 7/2/2024 2135: DA132: C3.1 Floor Plate Calculation Plan: Level 01 & Attic Floor 7/2/2024 2135: DA201: C3.1 Proposed Floor Plan: Ground 7/2/2024 2135: DA202: C3.1 Proposed Floor Plan: Level 01 7/2/2024 2135: DA203: C3.1 Proposed Floor Plan: Attic 7/2/2024 2135: DA204: C3.1 Proposed Floor Plan: Roof 7/2/2024 2135: DA301: C3.1 Russell Street Elevation 7/2/2024 2135: DA302: C3.1 Site Elevation: North 7/2/2024 2135: DA303: C3.1 Site Elevation: West 7/2/2024 2135: DA304: C3.1 Site Elevation: South 7/2/2024 2135: DA311: C3.1 East Elevation 7/2/2024 2135: DA312: C3.1 South Elevation 7/2/2024 2135: DA313: C3.1 West Elevation 7/2/2024 2135: DA314: C3.1 North Elevation 7/2/2024 2135: DA401: C3.1 Long Section: Site 7/2/2024 2135: DA410: C3.1 Long Section 7/2/2024 2135: DA411: C3.1 Cross Section 7/2/2024 2135: DA412: C3.1 Cross Section 2135: DA413: C3.1 Pool Section 2135: DA414: C3.1 Long Section 2135: DA415: C3.1 Long Section 2135: DA701: C3.1 Window Schedule 7/2/2024 2135: DA702: C3.1 Door Schedule 7/2/2024 2135: DA703: C3.1 Door Schedule 7/2/2024 Job No. 221907, Issue 1 Stormwater Management Plan C.K. Engineering Services 20/02/2023 Nil Hydraulic Statement C.K. Engineering Services 20 February 2023 Nil Easement Request Letter No. 30A Russell Street 20 January 2023 Nil Easement Refusal Letter No.14 Bell Street Nil Nil Easement Request Letter No.16 Bell Street Nil GF1648-A Geotechnical Report Geofirst 20 February 2023 Construction Management Plan VOARC December 2022 2135: DA801: Issue A Construction, Soil & Water Management Plan VOARC 10/12/2022 DA121, DA122, DA123 DA124, DA125, DA126 Landscape Plan Topia graphica 6/2/2024 Revision A Arboricultural Impact Assessment Report DJD Tree Consultancy 20/2/23 1323682S_02 BASIX Certificate Eco Certificates Pty Ltd ABN 82 166 705 488 13/2/2024 HR-62LHNY-01 NatHERS Certificate Manuel Basiri, Eco Certificates Pty Ltd 13/2/2024 Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to DA587/2022, as amended, for the demolition of the existing dwelling and construction of a new three-storey dwelling house, swimming pool and associated landscaping work at 30A Russell Street Vaucluse 2030 (Lot B of DP 157925) subject to conditions in Annexure A. L Byrne 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: 19 March 2024