Land and Environment Court New South Wales Medium Neutral Citation: Edgecliff Residences Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1639 Hearing dates: Conciliation conference held 5 July, 23 September 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA372/2023/1 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 $15,000 within 14 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 DA372/2023/1 (as amended) for the demolition of the existing strata titled residential apartment building, construction of new residential apartment building comprising 11 units and 24 car-parking spaces, landscaping and strata subdivision, at 365 Edgecliff Road, Woollahra, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – 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, 29, 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 Ch 4, Sch 9, s 147 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.112, 2.119, 2.120 Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2, 6.9 Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020 Category: Principal judgment Parties: Edgecliff Residences Pty Ltd (ACN 663 092 019) (First Applicant) MHN Design Union Pty Ltd (ACN 003 717 682) (Second Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (First and Second Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (First and Second Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/459491 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 Edgecliff Residences Pty Ltd and MHN Design Union Pty Ltd (First and Second Applicant respectively, together the Applicant), against the deemed refusal of Development Application DA372/2023/1 (the DA) by Woollahra Municipal Council (the Respondent). 2. At the date of its lodgment on 6 October 2023, the DA sought consent for the demolition of the existing strata titled residential apartment building and construction of a new residential apartment building, landscaping and strata subdivision at 365 Edgecliff Road, Edgecliff (the site). 3. 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 5 July and 23 September 2024. I presided over the conciliation conference. 4. 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. 5. 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, view impacts, excessive excavation, impacts upon street trees, incompatibility with the desired future character and streetscape character, inadequate internal amenity, and visual privacy and cross viewing impacts, amongst other contentions. 6. 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 Edgecliff, reducing building form and mass by one storey across the site frontage and increasing setbacks to sensitive neighbouring properties. Changes have been made to improve internal residential amenity, to improve the proposed presentation to primary street frontages and to mitigate against cross viewing. Trees previously impacted are now to be retained and protected. These agreed amendments also have the effect of reducing view impacts for a number of affected neighbours. 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 25 October to 9 November 2023, and notified a second time from 29 November to 14 December 2023. A total of fifty-four submissions were received by the Respondent raising concerns including: 1. View loss and impacts. 2. Exceedance of the relevant development standards for building height and FSR. 3. Impacts of excessive bulk and scale, and inconsistency with desired future character. 4. Excessive excavation, geotechnical risks, and construction phase impacts. 5. Overshadowing impacts and loss of sunlight. 6. Privacy and cross viewing impacts arising from inadequate building separation. 7. Loss of trees, vegetation and greenery. 8. Traffic and parking impacts. 1. 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. 2. 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. The amended DA - characterised as residential apartment development - is permissible with consent, within the R3 zone. 3. 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 enable other land uses that provide facilities or services to meet the day to day needs of residents. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. To ensure development conserves and enhances tree canopy cover. 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 residential apartment building occupying the site. 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 GSA Planning and dated September 2024. 7. The amended DA proposes a maximum building height of 22.57m, exceeding the relevant height of building development standard of 19.5m by 3.07m and representing a variation of approximately 15.7%. 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 immediate locality. 2. The area of building height exceedance generally arises as a result of the existing site topography falling away from Edgecliff Road and towards New South Head Road, and due to and earlier excavation associated with the existing residential apartment building occupying the site. 3. 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 relative to the parts of the amended DA which are compliant with the height standard. 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 is consistent with these objectives. 5. 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). The Applicant has provided a heritage impact statement prepared by Weir Phillips dated September 2023. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage items. 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. However, the amended DA involves works that are not likely to lower the water table below 1m Australian Height Datum (AHD) on any class of land within 500m of the site. 5. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Crozier dated March 2023. 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 pursuant to cl 6.9 of the WLEP - Tree canopy cover - the amended DA has relocated the proposed driveway entry to protect existing street tree T1. 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 amended DA does not propose a change of use for the site and accordingly a Preliminary Site Investigation is not required. I am otherwise satisfied that the long term pre-existing use of the site has been for residential purposes and is unlikely to be contaminated. 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 (EPA Reg), a BASIX certificate, No 1426391M_03, dated 18 September 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. 9. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. 10. Chapter 2 of SEPP BC deals with clearing of vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA proposes the removal of two trees and appropriate replacement trees. 11. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment, but lies outside the Foreshores and Waterways Area. The amended DA is agreed to appropriate manage stormwater quality and quantity. 12. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). 13. Pursuant to the provisions of the EPA Reg, the Applicant's architect, MHNDU (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement dated 9 September 2024, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. 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 s 147 of SEPP Housing. 14. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. 15. Pursuant to s 2.112 of SEPP Infrastructure, the amended DA proposes a new stormwater connection at the New South Head Road frontage, which requires the concurrence of Transport for New South Wales (TfNSW). TfNSW provided its concurrence, subject to conditions, on 10 November 2023. Relevant conditions of consent are imposed. 16. Pursuant to ss 2.119 and 2.120 of SEPP Infrastructure, the site has a frontage onto New South Head Road, which is a classified road. The amended DA does not create impacts to traffic on New South Head Road as vehicular access and parking is provided from Edgecliff Road. 17. Further, the Applicant has provided an acoustic report prepared by Renzo Tonin Acoustics dated 7 June 2024 addressing the requirements of s 2.120 and setting out recommendations to ensure appropriate mitigation against acoustic impacts within the proposed residential apartments. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Report. 18. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions. 19. 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. 20. 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 25 September 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA372/2023/1 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 $15,000 within 14 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 DA372/2023/1 (as amended) for the demolition of the existing strata titled residential apartment building, construction of new residential apartment building comprising 11 units and 24 car-parking spaces, landscaping and strata subdivision, at 365 Edgecliff Road, Woollahra, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court Annexure A Architectural Drawings ********** Amendments 16 October 2024 - Uploaded architectural plans and amended file number on the cover page. 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: 16 October 2024