Land and Environment Court New South Wales Medium Neutral Citation: Cooper View Developments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1122 Hearing dates: Conciliation conference held 8 March 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA166/2023/1 and rely upon the amended plans and documents referred to in condition A.3 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The Applicant's written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. (4) The Applicant's written request, pursuant to cl 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld. (5) The appeal is upheld. (6) Development consent is granted to Development Application DA166/2023/1 (as amended) for the demolition of three existing dwellings and construction of a new residential apartment building with basement carparking, landscaping and other works at 214-218 Victoria Road, Bellevue Hill, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38 State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30 Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: Cooper View Developments Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Simington (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/269356 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Cooper View Developments Pty Ltd (the Applicant), against the deemed refusal of Development Application DA166/2023/1 (the DA) by Woollahra Municipal Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of three existing dwellings, lot amalgamation, and the construction of a new part four-, part five-storey residential apartment building including car parking for 25 vehicles and landscape works at 214, 216 and 218 Victoria Road, Bellevue (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 March 2024. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of building height exceedance, floor space ratio (FSR) exceedance, inadequate deep soil and replacement planting, streetscape impacts, inadequate building separation and setbacks, privacy and cross viewing impacts, poor internal residential amenity, traffic management and drainage and stormwater design amongst other contentions. 5. Agreed design amendments have been made to improve the DA's relationship to the streetscape, to provide adequate deep soil and replacement tree canopy, mitigate against cross viewing and to appropriately address offsite overshadowing impacts. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 9. The DA was publicly notified from 7 June to 22 June 2023. Five submissions were received by the Respondent including concerns for site amalgamation, excessive building height, FSR exceedance, streetscape and character, building scale, bulk and form, impacts on solar access, privacy and cross viewing, tree loss, traffic congestion and excessive excavation, amongst other concerns. 10. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily resolve the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 11. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as a residential apartment building - is permissible with consent. 12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the R3 Medium Density Residential zone objectives, which include to provide for the housing needs of the community within a medium density residential environment, to provide a variety of housing types within a medium density residential environment, to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, and to ensure development conserves and enhances tree canopy cover. 13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures on the site is permissible with consent. 14. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings and cl 4.4 FSR. 15. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 16. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that each of the Applicant's written requests has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 17. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 18. As required by cl 4.6 of the WLEP, the Applicant has provided two written requests seeking to vary the height of buildings and FSR development standards respectively, prepared by GSA Planning and dated January 2024. 19. The parties agree, and I am satisfied, that the first written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons: 1. The amended DA proposes a maximum building height of 14.29m, exceeding the development standard of 13.5m by 0.79m, representing a variation of approximately 5.9%. 2. The amended DA is agreed to be of a form and scale that is compatible with the existing streetscape and desired future character of the locality. 3. The area of exceedance to the maximum building height standard generally arises as a result of facilitating universal access to the building and is generally attributable to a lift overrun. 4. The DA has been amended during the conciliation conference to resolve the Respondent's contentions, such that the non-compliant areas are unable to be perceived in the general presentation of the building to the street and configured in a manner that is consistent with the scale of development appropriate to the locality. 5. The proposed height exceedance does not give rise to additional adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. 6. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment, to provide a variety of housing types within a medium density residential environment, to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, and to ensure development conserves and enhances tree canopy cover. I am satisfied the amended DA meets these objectives. 7. The objectives of cl 4.3 of the WLEP include to establish building heights that are consistent with the desired future character of the neighbourhood, to minimise the loss of solar access to existing buildings and open space, and to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request. 2. Similarly, the parties agree, and I am satisfied, that the second written request adequately justifies the proposed variance to the FSR development standard of 1.3:1 for the following reasons: 1. The amended DA proposes a total FSR of 1.31:1, equating to an exceedance of 9.9sqm of gross floor area and representing a variation to the FSR development standard of approximately 0.7%. 2. The FSR exceedance is attributable to a building form, scale and height that is agreed to be consistent with the character of the immediate area and reflects design amendments that resolve the Respondent's contentions. 3. The FSR exceedance is minor and brings with it no material increase in impacts or diminution of amenity enjoyed by neighbouring properties. 4. The objectives of the WLEP Zone R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment, to provide a variety of housing types within a medium density residential environment, to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood, and to ensure development conserves and enhances tree canopy cover. I am satisfied the amended DA meets these objectives. 5. The objectives of cl 4.4 of the WLEP include to ensure the bulk and scale of new development is compatible with the desired future character of the area, to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a heritage conservation area. The site is, however, within reasonably close proximity to a number of listed heritage items including Cooper Park and the Victoria Road Heritage Conservation Area (HCA). 3. The parties agree, and I am satisfied, that the amended DA creates no unreasonable detrimental impacts upon nearby heritage items and HCA. 4. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not situated within a flood planning area. 5. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area. The amended DA is not likely to lower the water table below 1.0m Australian Height Datum on any land within 500m of Class 1, 2, 3 or 4 land. Accordingly, I am satisfied that those matters set out in cl 6.1 of the WLEP have been appropriately addressed and that no preliminary assessment or acid sulfate soils management plan is required. 6. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Geotesta, dated 17 March 2023. I am satisfied this report addresses the matters set out at cl 6.2(3), which have been given appropriate consideration. Agreed conditions of consent reflecting the report recommendations are imposed. 7. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 8. The parties agree, and I am satisfied, that the amended DA continues to be subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). 9. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, SRH Architecture (and its nominated architect Mr Simon Hanson - NSW registered architect 6739) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in SEPP 65. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of cl 30(2) of SEPP 65. 10. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument. 11. Pursuant to Ch 2 of SEPP Biodiversity and Conservation, the amended DA seeks consent for the removal of vegetation. The proposal includes deep soil sufficient to accommodate agreed large canopy trees and planting. Conditions of consent require the provision of adequate replacement planting. Accordingly, I am satisfied the amended DA conforms with the relevant provisions of Ch 2 of SEPP Biodiversity and Conservation. 12. Pursuant to Ch 6 of SEPP Biodiversity and Conservation, the site is situated within the Sydney Harbour Catchment, a regulated catchment as defined in SEPP Biodiversity and Conservation. However, the site is situated outside the mapped Foreshores and Waterways Area. The parties agree, and I am satisfied, that those specific matters raised in Ch 6 of SEPP Biodiversity and Conservation have been appropriately considered. 13. The parties agree, and I am satisfied, that the amended DA continues to be subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004. Pursuant to s 27 of the EPA Reg, a BASIX certificate No 1386429M_02, dated 26 February 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. 14. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 15. The Court notes that: 1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Applicant has lodged the amended DA with the Court on 11 March 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA166/2023/1 and rely upon the amended plans and documents referred to in condition A.3 at Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. 3. The Applicant's written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. 4. The Applicant's written request, pursuant to cl 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld. 5. The appeal is upheld. 6. Development consent is granted to Development Application DA166/2023/1 (as amended) for the demolition of three existing dwellings and construction of a new residential apartment building with basement carparking, landscaping and other works at 214-218 Victoria Road, Bellevue Hill, subject to the conditions of consent at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court 269356.23 Annexure A 269356.23 Architectural Plans ********** 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