Land and Environment Court New South Wales Medium Neutral Citation: Oliver-Frost v Woollahra Municipal Council [2024] NSWLEC 1696 Hearing dates: Conciliation conference on 22 October 2024 Date of orders: 01 November 2024 Decision date: 01 November 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA579/2022/1 for alterations and additions to the existing dwelling, a new swimming pool, hydrotherapy spa and associated landscaping at 37 Fitzwilliam Road, Vaucluse NSW 2030, also identified as Lots 1 and 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 – alterations and additions to a dwelling house – 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 1.8A, 4.3, 4.4, 4.6, 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) Michael Suttie (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): 2024/107596 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 DA579/2022/1 which seeks consent for alterations and additions to the existing dwelling, a new swimming pool, hydrotherapy spa and associated landscaping at Lots 1 and 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). 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 22 October 2024. I presided over the conciliation conference, at which 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. 4. 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 include: 1. Architectural design changes including, but not limited to, a reduction in size to the uppermost level to respond to issues of view loss, and a repositioning of the pool cabana; 2. Landscape design changes; 3. Stormwater revisions to respond to issues around tree retention, and; 4. Associated amendments to resolve the respondent's contentions. 1. 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. 2. 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 25 January to 9 February 2023. Fourteen submissions were received, and two oral submissions were made 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. The existing dwelling has a height of 11.34m, and the final plans, which propose an attic addition, have a maximum height of 12.51m. This is 31.68% above the maximum building height control. 5. As a result of this exceedance, cl 4.6(3) of the WLEP allows the applicant to request a contravention of this development standard. This request must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by GSA Planning dated September 2024 (the written request). Pursuant to WLEP cl 4.6, I am satisfied that: 1. The written request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of the Height of Buildings development standard, notwithstanding the non-compliance. Further, following the amendments to the building form in this conciliation process, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its siting and form. 2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that: 1. The exceedance is the result of the site topography that results from an existing basement excavation. 2. The height exceedance is centrally located and set back from all principal facades and site boundaries, and not readily discernible from the public domain. 3. The exceedance does not result in any view loss from neighbouring properties. 4. The proposed building remains consistent with the desired future character of the Vaucluse West Precinct despite the height exceedance. 1. The contravention is therefore justified by the impact of site topography, consistency with the desired future character of the area, and the lack of unreasonable adverse amenity impact. 2. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. 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. 2. The site is not located within an identified Flood Planning Area pursuant to cl 5.21 of the WLEP. 3. 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 B McIntyre, 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. 4. 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. 5. 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, the Geotechnical and Hydrogeological Report by Morrow Geotechnics dated 21 October 2024, I accept that the matters listed in this clause have been considered, and the earthworks proposed in the amended application are acceptable subject to the relevant agreed conditions of consent. 6. 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. 7. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development accompanies the application. Compliance with this certificate is required under the agreed conditions of consent. 8. 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 Heinz Consulting Engineering, 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 DA579/2022/1 to rely on the following amended plans and documents: Reference Description Author/Drawn Date(s) DA 100 Rev. A1 Basement Plan 23/09/2024 DA 101 Rev. A1 Ground Floor Plan 23/09/2024 DA 102 Rev. A1 First Floor Plan 23/09/2024 DA 103 Rev. A2 Attic Floor Plan 09/10/2024 DA 104 Rev. A1 Roof Plan All by Michael Suttie Architects 23/09/2024 DA 200 Rev. A2 North and South Elevations 10/10/2024 DA 201 Rev. A2 East and West Elevations 10/10/2024 DA 202 Rev. A2 Sections AA & BB 10/10/2024 DA 203 Rev. A2 Street Elevation 10/10/2024 A1766568_03 BASIX Certificate NSW Department of Planning, Industry and Environment 01/10/2024 22S245, Revision 6 Stormwater Management Plan Heinz Consulting Engineers 23/09/2024 P2730_10 rev 1 Geotechnical Investigation Report Morrow 21 October 2024 Plan No.s LP100/A1, LP101/A Landscape Plan Nicholas Hosking Studio A - 09/09/2024, A1 – 25/09/2024 Photomontages – 37 Fitzwilliam Road, Vaucluse, Issue H sheets 01 to 10 View Impact Analysis AE Design Partnership Pty Ltd 23/09/2024 Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Height of Buildings GSA Planning September 2024 ('Amended Development Application'). 1. The Amended Development Application was filed with the Court on 22 October 2024. 1. The Court orders: 1. The appeal is upheld. 2. Development Application DA579/2022/1 for alterations and additions to the existing dwelling, a new swimming pool, hydrotherapy spa and associated landscaping at 37 Fitzwilliam Road, Vaucluse NSW 2030, also identified as Lots 1 and 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 ********** 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: 01 November 2024