Land and Environment Court New South Wales Medium Neutral Citation: Barata v Woollahara Municipal Council [2024] NSWLEC 1726 Hearing dates: Conciliation conference held 10, 30 September and 14 October 2024 Date of orders: 12 November 2024 Decision date: 12 November 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA/358/2023 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 $3,000 within 14 days of the date of these orders. (3) The appeal is upheld. (4) Consent is granted to Development Application DA/358/2023 (as amended) for extensive alterations and additions to the existing dwelling including demolition to the existing building, to accommodate a new three-storey dwelling with a two-storey rear addition and new courtyard with associated landscaping at 3 Ormond Street Paddington, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – attached residential dwelling – alterations and additions – heritage conservation – residential amenity – 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 (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Woollahra Local Environmental Plan 2022, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, Sch 5 Category: Principal judgment Parties: Eduardo de Oliveira Barata (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: B Dyer (Solicitor) (Applicant) J Hewett (Solicitor) (Respondent) Solicitors: Maddocks (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2024/132648 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 Eduardo de Oliveira Barata (the Applicant), against the deemed refusal of Development Application DA/358/2023 (the DA) by Woollahra Municipal Council (the Respondent). At the date of its lodgement on 26 September 2023, the DA sought consent for extensive alterations and additions to the existing dwelling including extensive demolition to the existing building, to accommodate a new three-storey dwelling with a two-storey rear addition and a new courtyard with associated landscaping at 3 Ormond Street, Paddington (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 10 and 30 September, and 14 October 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. 5. These contentions included issues of inconsistency with the prevailing streetscape character, unacceptable heritage impacts, inappropriate building form, bulk, scale and height, unreasonable overshadowing impacts, unreasonable visual and acoustic privacy impacts, and inadequate provision of deep soil, amongst other contentions. 6. Agreed design amendments have been made to improve the DA's relationship to the site, its context and the existing streetscape character of the local area. Changes have been made reconfiguring the rear form of the proposed alterations and additions to effectively mirror-image the plan and attach to the northern neighbour rather than the southern neighbour as initially proposed. 7. The changes at the rear of the site to reconfigure the proposed building mass serves to improve solar access for the southern neighbour whilst also maintaining visual privacy, and similarly is arranged to eliminate cross viewing impacts with the northern neighbour. 8. Other amendments have adequately resolved earlier contentions for heritage, character and deep soil. 9. 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. 10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 11. 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. 12. The DA was publicly notified from 18 October 2023 to 2 November 2023. A total of seventeen submissions were received by the Respondent raising concerns for: 1. Excessive demolition of the existing structures. 2. The proposed additional storey sited above the existing principal building form is regarded to be inappropriate in the context. 3. Excessive height, bulk and scale associated with the proposal. 4. Visual privacy and overlooking impacts. 5. Solar access and overshadowing impacts. 6. Heritage impacts associated with the proposed works. 7. Inadequate provision of deep soil landscaping. 8. Inaccurate and insufficient information. 1. At the commencement of the conciliation conference, the Court benefited from oral submissions made by a number of local residents. The Court also visited the subject site and nearby owners' properties. 2. Each of these resident objectors had previously made written submissions to the Respondent, setting out their concerns with the DA and used the opportunity to address the Court to reinforce these submissions. 3. These concerns are reflected in the Respondent's contentions and were discussed during the conciliation process. 4. 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. 5. 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 R2 Low Density Residential. The amended DA - characterised as alterations and additions to an existing attached dwelling - is permissible with consent within the R2 zone. 6. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the relevant R2 Low Density Residential zone objectives, which include: 1. To provide for the housing needs of the community within a low density residential environment. 2. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 3. To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. 4. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 5. 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, consent is required to carry out demolition, and accordingly consent for the partial demolition of existing structures is sought within the amended DA. 2. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, including cl 4.3 - Height of buildings - and cl 4.4 - Floor space ratio. 3. 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, however it is located within the Paddington heritage conservation area (HCA) as mapped within Sch 5 of the WLEP. 4. Accordingly, the amended DA is supported by a Heritage Impact Statement prepared by Urbis dated September 2023 which has assessed the impact of the proposal upon the HCA. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage items or HCA and, by retaining the primary facade of the existing building, conserves the heritage significance of the HCA. 5. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulphate soils - the site is mapped within an area classified as Class 5 Acid Sulfate Soils. However, works are not proposed within 500m of any adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. 6. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the WLEP - Earthworks - the extent of proposed excavation works are considered to be minor and limited to footings and foundations at the rear of the site. 7. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. 8. Agreed conditions of consent are imposed to deal with any unexpected finds during construction and the identification of hazardous material. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience. 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 6 of SEPP BC deals with water catchments. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment, but is outside the Foreshores and Waterways Area and therefore only the provisions in Pt 6.2 of SEPP BC apply. The proposed stormwater system will be connected to an existing stormwater system. Agreed conditions of consent are imposed to regulate the quantity and quality of stormwater on the site. 11. Accordingly, I am satisfied the amended DA addresses those relevant matters outlined in Ch 6 of SEPP BC. 12. 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 (SEPP BASIX). Consistent with SEPP BASIX and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No A502999_03 dated 1 October 2024 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. 13. 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. 14. 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 14 October 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA/358/2023 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 $3,000 within 14 days of the date of these orders. 3. The appeal is upheld. 4. Consent is granted to Development Application DA/358/2023 (as amended) for extensive alterations and additions to the existing dwelling including demolition to the existing building, to accommodate a new three-storey dwelling with a two-storey rear addition and new courtyard with associated landscaping at 3 Ormond Street Paddington, subject to the conditions of consent at Annexure A. M Pullinger Acting 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: 12 November 2024