Land and Environment Court New South Wales Medium Neutral Citation: MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1213 Hearing dates: Conciliation conference held on 19 April 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The applicant's written request, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for minimum lot size for residential flat buildings as set out at clause 4.1A of the WLEP, is upheld. (2) The applicant's written request, pursuant to clause 4.6 of the WLEP, seeking to vary the development standard for height of buildings as set out at clause 4.3 of the WLEP, is upheld. (3) The appeal is upheld. (4) Development Application DA237/2023/1 for the demolition of a dwelling house and construction of a three level residential flat building with basement parking and landscaping, at 43 Salisbury Road, Rose Bay NSW 2029 is determined by the grant of consent subject to conditions contained in Annexure B. (5) 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 by the amendment of the development application, as agreed or assessed. Catchwords: APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Water Management Act 2000, s 90 Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38 Woollahra Local Environmental Plan 2014, cll 4.1A, 4.3, 4.4, 5.21, 6.1, 6.2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9 Cases Cited: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 Category: Principal judgment Parties: MHN Design Union Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) L Mulligan (Solicitor) (Applicant) Solicitors: Boskovitz Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/326975 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and the construction of a three-storey residential flat building containing three units, with basement parking for six vehicles, at 43 Salisbury Road, Rose Bay. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 April 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was provided the same date, and followed the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include an increase to the deep soil area in the front setback, a redesign of the landscaped garden, the removal of the street entry awning and trellis screen, a change to the parking layout and the relocation of services. The amended development application was filed on 16 April 2024. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites that sets out the matters about which the Court must be satisfied in order to exercise the power to grant development consent. I have considered the contents of the agreed statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The development works are for the purpose of a residential flat building, which is a use that is permissible with development consent in the R3 Medium Density Residential zone in which the site is located, pursuant to the Woollahra Local Environmental Plan 2014 (WLEP). 2. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 10.5m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 11.26m represents a contravention of 0.76m (7.2%) above the numerical standard. The contravention is confined to the pitch in the roof, where the upper parts of the pitch breach the height development standard. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises from the ground level being raised above the flood planning level, as well as from the use of a pitched roof to maintain compatibility with the surrounding area and the adjacent heritage conservation area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 3. I am satisfied that consent should be granted notwithstanding the contravention of the development standard for the minimum lot size for a residential flat building. Clause 4.1A of the WLEP requires a minimum lot size of 700m2 for residential flat buildings in the R3 zone, and the site area is 696.7m2. As acknowledged by the Court of Appeal in Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 at [9], a modest departure from a development standard is a basis upon which compliance with the standard can be seen to be unreasonable or unnecessary. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the breach is negligible (less than 0.5%), will not be perceived, and cannot be avoided to pursue a residential flat building that is consistent with the adjoining development and emerging character of the area. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given the negligible and indiscernible departure from the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 4. The proposed development complies with the floor space ratio development standard that applies pursuant to cl 4.4 of the WLEP. 5. Clause 5.21 of the WLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by a Flood Risk Assessment Report prepared by Catchment Simulation Solutions, dated 31 May 2023. Based on the contents of the assessment report, I have considered the matters in cl 5.21(3) of the WLEP and I am satisfied of the matters in cl 5.21(2). 6. The site is mapped as having Class 4 Acid Sulfate Soils. As such, cl 6.1 of the WLEP applies. Consistent with the requirements of cl 6.1(3), an acid sulfate soils management plan has been prepared for the proposed development by Environmental Consulting Services dated 25 May 2023 and I am satisfied that any disturbance of acid sulfate soils will be managed to minimise adverse impacts. 7. The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical Investigation Report dated 8 June 2023, I have considered the matters set out in cl 6.2(3) of the WLEP. 8. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated. 9. The site falls within the Sydney Harbour Catchment, which means that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Section 6.6 concerns maintaining water quality and minimising impact on water flows, and s 6.7 concerns minimising impact on aquatic ecology. Based on the stormwater plans, I am satisfied of the matters in ss 6.6(2) and 6.7(2). The development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2), which concerns recreation areas and public access to waterbodies. Further, based on the Flood Risk Assessment Report prepared by Catchment Simulation Solutions dated 31 May 2023, I am satisfied that the development will not result in the release of pollutants in a flood, or have an impact on natural recession of floodwaters, consistent with s 6.8 of the SEPP B&C. 10. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 26 March 2024. 11. The development application was notified in accordance with the requirements of the Woollahra Community Participation Plan 2023, from 26 July 2023 to 25 August 2023. Nine submissions were received. I have considered the issues raised in those submissions. 12. The proposal is integrated development pursuant to s 90 of the Water Management Act 2000. The Department of Industry has provided general terms of approval under s 90 of the Water Management Act, and those terms of approval are incorporated into the conditions. 1. I note also that the site of the proposed development, 43 Salisbury Road, Rose Bay, recently changed ownership and the current owner, Salisbury Road Development Pty Ltd, have provided their consent dated 19 April 2024 to the lodging of the development application. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes that: 1. The respondent, Woollahra Municipal Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA237/2023/1 in accordance with the documents listed in Annexure A. 1. The Court orders that: 1. The applicant's written request, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for minimum lot size for residential flat buildings as set out at clause 4.1A of the WLEP, is upheld. 2. The applicant's written request, pursuant to clause 4.6 of the WLEP, seeking to vary the development standard for height of buildings as set out at clause 4.3 of the WLEP, is upheld. 3. The appeal is upheld. 4. Development Application DA237/2023/1 for the demolition of a dwelling house and construction of a three level residential flat building with basement parking and landscaping, at 43 Salisbury Road, Rose Bay NSW 2029 is determined by the grant of consent subject to conditions contained in Annexure B. 5. 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 by the amendment of the development application, as agreed or assessed. I certify that this and the preceding 6 pages are a true copy of my reasons for judgment. ………………………. J Gray Commissioner of the Court ********** Annexure A Annexure B 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: 24 April 2024