Land and Environment Court New South Wales Medium Neutral Citation: Oliver-Frost v Woollahra Municipal Council [2024] NSWLEC 1690 Hearing dates: Conciliation conference on 15 October 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA138/2023/1 for the demolition of the structures including driveway and construction of a new dwelling, swimming pool and associated landscaping at 37 Fitzwilliam Road, Vaucluse NSW 2030, also identified as Lot 2 in Deposited Plan 341240 is determined by the grant of development consent subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – construction of a dwelling – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Woollahra Local Environmental Plan 2014, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, Sch 5 Texts Cited: Woollahra Community Participation Plan 2019 Category: Principal judgment Parties: Nigel Graham Oliver-Frost (First Applicant) MHN Design Union Pty Ltd (Second Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: M Staunton (Applicants) D Havadjia (Solicitor)(Respondent) Solicitors: Boskovitz Lawyers (Applicants) Lindsay Taylor Lawyers (Respondent) File Number(s): 2024/105923 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Woollahra Municipal Council, of development application DA138/2023/1 which seeks consent for the demolition of existing structures and construction of a new dwelling, swimming pool and associated landscaping on Lot 2, DP 341240 at 37 Fitzwilliam Road, Vaucluse. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and have been heard concurrently with an appeal for development on the adjoining lot at Lot 1, DP 341240, also known as 37 Fitzwilliam Road, Vaucluse. 3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 October 2024. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing. 5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicants amending the development application. These amendments included architectural design changes, landscape design changes, and other associated amendments that have resolved the respondent's contentions. 6. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified in accordance with the Woollahra Community Participation Plan 2019 from 24 May to 8 June 2023. Fourteen submissions were received, and two residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. 3. The subject site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone. 4. Pursuant to WLEP cl 4.3, a maximum building height of 9.5m applies to the subject site, to which the proposed development complies. 5. Pursuant to the savings and transitional provisions at 1.8A(2), Amendment No 33 of the WLEP, which introduced a floor space ratio (FSR) development standard for this site, does not apply to this site. Accordingly, there is no FSR standard pursuant to WLEP cl 4.4. 6. The site is not located within an identified Flood Planning Area pursuant to cl 5.21 of the WLEP. 7. The site does not contain a heritage item and is not within a heritage conservation area. However, the site is located in proximity of heritage items which are locally listed under Sch 5 of the WLEP. From the parties' submission and the Local Planning Panel Development Assessment Report by Mr W Perdigao, dated 8 November 2023 (the planning assessment report), I accept that the proposed development will not have an adverse impact on the heritage significance of these items, pursuant to cl 5.10 of the WLEP. 8. Pursuant to WLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500m of adjacent Class 1, 2, 3 or 4 land. A preliminary assessment is therefore not required and I accept the parties' submission that the land is unlikely to be affected by acid sulfate soils. 9. Earthworks are proposed in the development application, and subsequently the consent authority must consider the matters listed at WLEP cl 6.2(3). From the parties' submission and, the Geotechnical and Hydrogeological Report by Morrow Geotechnics dated 14 October 2024, I accept that the matters listed in this clause have been considered, and the earthworks proposed in this application are acceptable. 10. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use. 11. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development accompanies the application that the parties submit, and I accept, is adequate. 12. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). From the parties' submission, the planning assessment report and the amended civil engineering and stormwater management plans by RTS Civil Consulting Engineers, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10). I therefore accept that the matters for consideration, and the requirements of Ch 6 of the Biodiversity and Conservation SEPP have been met with the proposed development. Conclusion 1. 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, as required by s 34(3) of the LEC Act, and that subsequently I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. Woollahra Municipal Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicants amending Development Application No DA138/2023/1 to rely on the following amended plans and documents: DOCUMENT AUTHOR DATE Architectural Plans DA-03 Site and Roof Plan, Rev. C DA-04 Basement Floor Plan, Rev. C DA-05 Ground Floor Plan, Rev. C DA-06 First Floor Plan, Rev. C DA-07 Second Floor Plan, Rev. C DA-08 Sections, Rev. C MHN Design Union Pty Ltd 02/09/2024 DA-09 Privacy Sections, Rev. C DA-10 Elevations, Rev. C DA-11 Elevations, Rev. C DA-13 Compliance Diagrams – Controls Summary, Rev. C DA-20 Pool Sections, Rev. C Landscape Plans L-01 Site Plans/Calcs, Issue D L-02, Detailed Plan, Issue D Site Design + Studios 02/09/2024 L-03 Notes & Specification, Issue D Stormwater Management Plans SW001 Cover Page, Notes & Calculations Sheet, Issue B SW002 Coverpage, Notes & Calculations Sheet, Issue B SW100 Ground Stormwater Management Plan, Issue C SW101 Basement Stormwater Management Plan, Issue E Issue B all dated 12 August 2024 SW102 Level 1, Level 2 & Roof Stormwater, Issue C RTS Issue C dated 5 August 2024 SW103 Drainage Pipeline Extension Plan, Issue C Issue E dated 20 September 2024 SW200 Stormwater Drainage Details Sheet 1 of 3, Issue B SW201 Stormwater Drainage Details Sheet 2 of 3, Issue B SW202 Stormwater Drainage Details Sheet 3 of 3, Issue B SW203 New Pipeline Longitudinal Section, Issue B View Impact Analysis 37 Fitzwilliam Road, Vaucluse, Photomontages – Two Dwellings AE Design Partnership Pty Ltd August 2024 BASIX Certificate BASIX Certificate 1382904S_02 Gradwell Consulting 26/09/2024 NatHERS Certificate NatHERS Certificate No. 0009775289 Gradwell Consulting 26/09/2024 Geotechnical & Hydrogeological Report Geological & Hydrogeological Report, Reference P2730_09 Rev 1 Morrow Geotechnics Pty Ltd 14 October 2024 Draft Deposited Plan Draft Deposited Plan, Ref No. 67627BW_DP_v3 Harrison Friedmann & Associates 20/08/2024 Site Waste Minimisation and Management Plan Site Waste Minimisation and Management Plan Mattias Dorph – MHNDU ARCHITECTS 19/09/2024 Civil Plans Civil Driveway Access Plan and Longitudinal Sections, Project No. 221003.4, Issue B CW001 – Cover page, notes & calculations RTS 12/08/2024 CW100 – Civil driveway access plan CW200 – Civil driveway access longitudinal sections "Amended Development Application" 1. The Applicants filed the Amended Development Application with the Court on 15 October 2024. 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA138/2023/1 for the demolition of the structures including driveway and construction of a new dwelling, swimming pool and associated landscaping at 37 Fitzwilliam Road, Vaucluse NSW 2030, also identified as Lot 2 in Deposited Plan 341240 is determined by the grant of development consent subject to conditions contained in Annexure A. E Washington Commissioner of the Court 105923.24 Annexure A ********** 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: 30 October 2024