Land and Environment Court New South Wales Medium Neutral Citation: Kew Bellevue Hill Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1627 Hearing dates: Conciliation conference on 14 August 2024 Date of orders: 8 October 2024 Decision date: 08 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent DA2022/335/1 granted by the Land and Environment Court on 8 August 2023 is modified in the terms in Annexure A to this agreement. (3) The terms of the consolidated development consent, as modified by the Court, are set out in Annexure B to this agreement. Catchwords: MODIFICATION APPLICATION – conciliation conference – residential apartment building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113 State Environmental Planning Policy (Housing) 2021, s 147 Woollahra Local Environmental Plan 2014, cll 4.3, 5.21, 6.1, 6.2 Category: Principal judgment Parties: Kew Bellevue Hill Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Gadiel (Solicitor)(Applicant) S Patterson (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2024/41614 Publication restriction: Nil Judgment 1. COMMISSIONER: These Class 1 proceedings arise from a modification application, made by Kew Bellevue Hill Pty Ltd, directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application requests to modify development consent DA335/2022/1 which was approved by the Court on 10 August 2023, for the demolition of existing structures and construction of two new residential flat buildings containing a total of 16 units at 84, 86 and 88 Birriga Road, Bellevue Hill, legally known as Lot 1 in DP34743, Lot 1 in DP105443 and Lot 88 in DP1039955. 2. The application proposes: 1. Internal and external reconfiguration of both buildings, including: reconfigured elevations; amendments to internal layouts; balconies and roof terraces, and; amendments to materiality and finishes. 2. Addition of a swimming pool adjacent to the eastern boundary. 3. Amendment of the landscape design. 1. 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 14 August 2023. I presided over the conciliation conference. 2. After the conciliation conference, on 12 September 2024, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points: 1. The modification application was made with the written consent of the owner of the subject site. 2. Pursuant to s 4.56(1)(a) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note: * The development retains the number of buildings, dwellings, levels, storeys and car spaces. The height of the buildings remains unchanged, as does the volume of excavation. The building type and use is maintained. * The modification facilitates additional bedrooms for the rear building, an increase in the approved Gross Floor Area (GFA), and refined external elevations. These modifications are minor in terms of the development as a whole, and have acceptable environmental planning impacts as per the parties' submissions and the letter from GSA Planning dated 21 August 2024 (tab 10 amended application). 1. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted. 2. In accordance with the requirements of s 4.56(1)(b), (c) and (d), the modification application was notified from 6 March to 25 March 2024 in accordance with the Woollahra Community Participation Plan. Ten submissions were received, and five residents gave oral submissions at the commencement of these proceedings. The parties submit, and I accept that issues raised in these submissions have been adequately considered in the assessment of this application and in the amendments made as part of this conciliation process. 3. Having regard to the Woollahra Local Environmental Plan 2014 (WLEP), the parties submit, and I accept that the amendments do not result in any exceedance of the permissible height control (cl 4.3), do not result in any works that impact Acid Sulfate Soils (cl 6.1), do not impact the approved earthworks (cl 6.2) nor impact flood planning (cl 5.21). Further, the site is zoned R3 Medium Density Residential within which development for the purposes of residential flat buildings is permissible with consent. The parties submit, and I accept that the proposed development as modified meets the objectives of the zone. 4. Pursuant to s 100 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the application contains the information required under s 100(1), and a BASIX certificate as required under s 100(3). 5. The application contains a statement by a qualified designer that addresses the matters listed in s 102 of the EPA Regulation. 6. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the development. Pursuant to s 147 of the Housing SEPP, a 'Design Verification Statement' by Jason Fraser of Woods Bagot, and a 'SEPP 65 Design Principles for Residential Apartment Development & Apartment Design Guide Compliance Checklist' by Woods Bagot, both dated 18 January 2024, have been submitted with the modification application. From these documents and the parties' submission, I accept that the development has been considered against the design quality principles set out in Sch 9 of the Housing SEPP and the Apartment Design Guide. No advice was received from a design review panel. 7. Finally, based on the information contained in the Statement of Environmental Effects, the amended plans, and the parties' joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as relevant to the development the subject of this application have been considered, as required by EPA Act s 4.55(2), and that all jurisdictional prerequisites have been met. 8. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 9. The Court notes: 1. That Woollahra Municipal Council as the relevant consent authority has agreed, under cl 113 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of Development Consent DA2022/335/1 granted by the Court on 8 August 2023 in the following respects: 1. the inclusion of architectural drawings prepared by Woods Bagot in replacement of corresponding earlier drawings as follows: Drawing No. Rev. Title Date DA 0000 L Cover Sheet 21 August 2024 DA 1003 L Site & Roof Plan 21 August 2024 DA 1004 L Demolition/Tree Removal Plan 21 August 2024 DA 1005 K Setbacks Diagram 21 August 2024 DA 1006 K Public Domain Diagram 21 August 2024 DA 1007 C Sydney Water Access Plan 21 August 2024 DA 1008 C Communal Open Terrace 21 August 2024 DA 2000 K Basement 03 Key Plan 21 August 2024 DA 2001 K Basement 02/B – Lower Ground Floor – Key Plan 21 August 2024 DA 2002 K Basement 01/B – Ground Floor – Key Plan 21 August 2024 DA 2003 K A Lower Ground / B – Level 01 Floor - Key Plan 21 August 2024 DA 2004 L A Lower Ground 01/B – Level 02 Floor – Key Plan 21 August 2024 DA 2005 L A Ground Floor Plan/B – Roof – Key Plan 21 August 2024 DA 2006 L A Level 01 Floor – Key Plan 21 August 2024 DA 2007 L A Level 02 Penthouse Floor – Key Plan 21 August 2024 DA 2008 L Roof – Key Plan 21 August 2024 DA 2100 L Basement 03 – Plan 21 August 2024 DA 2101 L Basement 02/B – Lower Ground – Plan 21 August 2024 DA 2102 L Basement 01/B – Ground Floor – Plan 21 August 2024 DA 2103 L A Lower Ground /B – Level 01 Floor – Plan 21 August 2024 DA 2104 L A Lower Ground 01/B – Level 02 Floor – Plan 21 August 2024 DA 2105 L A Ground Floor Plan/B - Roof - Plan 21 August 2024 DA 2106 L A Level 01 Floor - Plan 21 August 2024 DA 2107 L A Level 02 Penthouse Floor - Plan 21 August 2024 DA 2108 L Roof - Plan 21 August 2024 DA 3000 L Building A - Elevation South 21 August 2024 DA 3001 K Building A - Elevation North 21 August 2024 DA 3002 K Building A - Elevation East 21 August 2024 DA 3003 L Building A - Elevation West 21 August 2024 DA 3004 K Building B - Elevation North 21 August 2024 DA 3005 K Building B - Elevation East 21 August 2024 DA 3006 K Building B - Elevation West 21 August 2024 DA 3100 K Site Section – Building A & B 21 August 2024 DA 3101 L Building A - Short Section 21 August 2024 DA 3102 K Building B - Long Section 21 August 2024 DA 3103 K Building B - Short Section 21 August 2024 DA 3104 K Building B - Boundary Sections 21 August 2024 DA 6000 K External Finishes & Materials 21 August 2024 DA 7000 K Adaptable Layouts 21 August 2024 DA 9004 K Waste Management Plan 21 August 2024 DA 9005 K Excavation Diagrams 01 21 August 2024 DA 9006 K Excavation Diagrams 02 21 August 2024 DA 9007 K Excavation Diagrams – Parking Breakdown 21 August 2024 DA 9100.5 C Solar Access 11am-12pm – June 21 21 August 2024 DA 9100 C Solar Access 9am-10am – June 21 21 August 2024 DA 9101 C Solar Access 1pm-3pm – June 21 21 August 2024 DA 9200 K Notification Plan 01 21 August 2024 DA 9201 L Notification Plan 02 21 August 2024 SK01A L Boundary Stair Elevation 21 August 2024 SK01B L Boundary Fence Details 21 August 2024 SK 04E K Egress Path Sections 21 August 2024 SK 04F C Boundary Study Section 21 August 2024 SK 04I C Boundary Study 3D 21 August 2024 SK-03 K Building B Ground Floor Plan - Egress Path Detail 21 August 2024 SK-04D K Egress Path Plan and Section 21 August 2024 1. the inclusion of the schedule of amendments prepared by Woods Bagot dated 21 August 2024; 2. the inclusion of landscape drawings prepared by Dangar Barin Smith in replacement of corresponding earlier drawings as follows: Drawing No. Rev. Title Date LP01-D5823 I Cover Page 22 August 2024 LP02-D5823 I Front Entry Landscape Plan – Building A 22 August 2024 LP03-D5823 I Rear and Central Landscapes – Building A Basement 1 & Building B Ground Floor 22 August 2024 LP04-D5823 I Roof Garden Landscape Plan – Building B 22 August 2024 LP05-D5823 I Eastern & Western Landscapes Elevations – Building A 22 August 2024 1. the inclusion of the town planning letter prepared by GSA Planning dated 21 August 2024; and 2. the inclusion of the revised BASIX certificate 1326574M_05 dated 23 August 2024 in replacement of the earlier BASIX certificate, 3. the inclusion of the arboricultural impact assessment and management plan prepared by George Palmer dated January 2024; 4. the inclusion of the letter titled '88 Birriga Road, Bellevue Hill, NSW – Stormwater Plan' prepared by WMS dated 30 April 2024; 5. the inclusion of the amended civil engineering drawings prepared by Stantec in replacement of corresponding earlier drawings as follows: Drawing No. Rev. Title Date STN-ZZ-000-DR-CI-007001 B General Notes Sheets 1 of 3 23 July 2024 STN-ZZ-000-DR-CI- 007002 B General Notes Sheets 2 of 3 23 July 2024 STN-ZZ-000-DR-CI-007003 B General Notes Sheets 3 of 3 23 July 2024 STN-ZZ-000-DR-CI-050001 B Existing Conditions Plan 23 July 2024 STN-ZZ-000-DR-CI-055001 B Demolition Plan 23 July 2024 STN-ZZ-000-DR-CI-060001 B General Arrangement Plan 23 July 2024 STN-ZZ-000-DR-CI-066001 B Roads and General Details Sheet 1 of 2 23 July 2024 STN-ZZ-000-DR-CI-066002 B Roads and General Details Sheet 2 of 2 23 July 2024 STN-ZZ-000-DR-CI-07001 B Erosion and Sediment Control Plan 23 July 2024 STN-ZZ-000-DR-CI-076001 B Erosion and Sediment Control Details 23 July 2024 STN-ZZ-000-DR-CI-100001 C Bulk Earthworks Plan 23 July 2024 STN-ZZ-000-DR-CI-103001 B Bulk Earthworks Section 23 July 2024 STN-ZZ-000-DR-CI-440001 B Public Domain Works 23 July 2024 STN-ZZ-000-DR-CI-500001 B WSUD Catchment Plan 23 July 2024 STN-ZZ-000-DR-CI-510001 A Stormwater Catchment Plan 18 July 2024 STN-ZZ-000-DR-CI-526001 B Stormwater Drainage Details Sheet 1 of 5 23 July 2024 STN-ZZ-000-DR-CI-526002 B Stormwater Drainage Details Sheet 2 of 5 23 July 2024 STN-ZZ-000-DR-CI-526003 B Stormwater Drainage Details Sheet 3 of 5 23 July 2024 STN-ZZ-000-DR-CI-526004 B Stormwater Drainage Details Sheet 4 of 5 23 July 2024 STN-ZZ-000-DR-CI-526005 B Stormwater Drainage Details Sheet 5 of 5 23 July 2024 STN-ZZ-000-DR-CI-520001 B Stormwater Drainage Plan 23 July 2024 1. the inclusion of the visual impact assessment prepared by AE Design Partnership Pty Ltd dated 22 April 2024; 2. the inclusion of the photomontages document prepared by AE Design Partnership Pty Ltd dated April 2024; 3. the inclusion of the photomontages document prepared by AE Design Partnership Pty Ltd dated June 2024. 1. The Court orders: 1. The appeal is upheld. 2. Development consent DA2022/335/1 granted by the Land and Environment Court on 8 August 2023 is modified in the terms in Annexure A to this agreement. 3. The terms of the consolidated development consent, as modified by the Court, are set out in Annexure B to this agreement. E Washington Acting 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: 08 October 2024