Land and Environment Court New South Wales Medium Neutral Citation: Parkson C Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1381 Hearing dates: Conciliation conference held 18 March, 8 April, 6 May and 17 June 2024 Date of orders: 04 July 2024 Decision date: 04 July 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application 13/2023/1 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 in the agreed sum of $17,000 within 28 days of the date of these orders. (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 appeal is upheld. (5) Consent is granted to Development Application DA13/2023/1 (as amended) for demolition of existing structures and construction of a three-storey shop top housing development comprising ground level retail and two residential units with associated car parking, at 77-79 New South Head Road, Vaucluse, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – 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, 37, 38 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, 2.7, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2 Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020 Category: Principal judgment Parties: Parkson C Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicant) S Wilson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/290127 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 Parkson C Pty Ltd (the Applicant), against the deemed refusal of Development Application DA13/2023/1 (the DA) by Woollahra Municipal Council (the Respondent). At the time of its lodgement on 13 January 2023, the DA sought consent for the demolition of a former service station, removal of trees and construction of a new three-storey shop top housing development comprising three residential units and two basement parking levels, at 77-79 New South Head Road, Vaucluse (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 18 March, 8 April, 6 May and 17 June 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. These contentions included issues of building height exceedance, floor space ratio (FSR) exceedance, incompatibility with the desired future character and streetscape character, lack of visual and acoustic privacy and cross viewing impacts, inadequate vehicle access, tree removal and the presence of contamination, amongst other contentions. 5. Agreed design amendments have been made to improve the DA's relationship to the site, its context and the desired future character of this part of the Vaucluse village, reducing building form and mass across the site and increasing setbacks to sensitive neighbouring properties. Changes have been made to improve internal residential amenity, to improve the presentation to the primary street frontage and to mitigate against cross viewing. Trees previously proposed to be removed are now to be retained. These agreed amendments also have the effect of reducing the scale, form and mass of the proposed building. 6. Contentions regarding site contamination and the method to make the site suitable for its intended use have been agreed and resolved. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. 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. 10. The DA was publicly notified from 1 February to 3 March 2023. A total of eight submissions from six individual objectors were received by the Respondent raising concerns with overshadowing, impacts associated with excessive height and building bulk, visual privacy and cross viewing, acoustic privacy, and inadequate setbacks. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address 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. At the date the DA was lodged, the site was zoned B1 Neighbourhood Centre. Since 25 April 2023, the site has been zoned E1 Local Centre. The amended DA, comprising residential apartments and ground level retail uses - characterised as shop top housing development - is permissible with consent within the B1 (and later E1) zone. 12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the B1 Neighbourhood Centre zone objectives, which include: * To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. * To provide active ground floor uses to create vibrant centres. * To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area. * To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. * To provide for a range of other uses, including light industrial, that serve the surrounding neighbourhood without impacting on the amenity of the adjoining uses. 1. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing petrol station and agreed conditions of consent are imposed to regulate demolition works. 2. 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. 3. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 4. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant's written request 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. 5. 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 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter. 6. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by ABC Planning and dated April 2024. 7. The amended DA proposes a maximum building height of 12.54m, exceeding the relevant height of building development standard of 11m by 1.54m and representing a variation of approximately 14%. 8. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons: 1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the Vaucluse village locality. 2. The proposed form presents a three-storey street wall to New South Head road, in keeping with the prevailing scale of nearby buildings. 3. The area of exceedance to the maximum building height development standard generally arises as a result of the existing topography falling away toward the rear of the site. 4. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties, and is not generally perceptible from vantage points in the primary street. 5. The objectives of the WLEP B1 Neighbourhood Centre land use zone include to provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood; to provide active ground floor uses to create vibrant centres; to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area; and to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. I am satisfied the amended DA is consistent with these objectives. 6. 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. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the existing building on the site is not a listed heritage item, nor is the site located within a heritage conservation area (HCA). Further, the site is not within close proximity to a listed heritage item or HCA. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage items or HCA. 3. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not located within a Flood Planning Area on the Flood Planning Map. 4. 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 Applicant has provided a letter prepared by Geofirst Pty Ltd and dated 6 November 2023, which deals with acid sulfate soils. I am satisfied the letter appropriate addresses those matters set out at cl 6.1 of the WLEP. 5. The parties agree, and I am satisfied, that the DA proposes minor excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation works. 6. 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 Applicant has provided a Site Contamination Assessment, prepared by Sullivan Environmental Sciences and dated 2 August 2021, and an amended Remedial Action Plan (RAP), prepared by Sullivan Environmental Sciences and dated 24 May 2024. These reports confirm the site is contaminated due to its use as a petrol station between 1945 and 1985 and its current use for car servicing and car wash. The RAP identifies a methodology to decommission existing underground storage tanks and to remediate the soil to an acceptable state. 7. Agreed conditions of consent reflecting the recommendations of the RAP are imposed. 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 remains subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Consistent with SEPP BASIX and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No 1356995M_02, dated 7 June 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. 9. 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. 10. The Court notes that: 1. Pursuant to ss 37 and 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 17 June 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application 13/2023/1 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 in the agreed sum of $17,000 within 28 days of the date of these orders. 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 appeal is upheld. 5. Consent is granted to Development Application DA13/2023/1 (as amended) for demolition of existing structures and construction of a three-storey shop top housing development comprising ground level retail and two residential units with associated car parking, at 77-79 New South Head Road, Vaucluse, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court 290127.23 Annexure A 290127.23 Plans ********** Amendments 05 July 2024 - Pursuant to UCPR r 36.17, the 'slip rule', the architectural plans have been included. 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: 05 July 2024