Land and Environment Court New South Wales Medium Neutral Citation: Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1784 Hearing dates: Conciliation conference on 5 September 2024 Date of orders: 04 December 2024 Decision date: 04 December 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No. 136/2023/1 for the substantial demolition of the existing residential flat building and the construction of a new residential flat building with basement car parking, at 206B Victoria Road, Bellevue Hill, is modified by Modification Application No. 136/2023/2, in the terms set out at Annexure A, subject to the consolidated conditions of consent at Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Woollahra Local Environmental Plan 2014, cll 4.3, 4.4 Category: Principal judgment Parties: Concretive BHV Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) J Zorzetto (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2024/108999 Publication restriction: Nil Judgment 1. COMMISSIONER: This Modification Application No. 136/2023/2, made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), is to modify Development Consent No. 136/2023/1 for the substantial demolition of the existing residential flat building and the construction of a new residential flat building with basement car parking (the proposal), at 206B Victoria Road, Bellevue Hill, by Woollahra Municipal Council (the Council). 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 5 September 2024. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 4.55(2) of the EPA Act to modify the development consent. 3. There are pre-conditions to the exercise of power to modify the development consent. The application is amended 1. Woollahra Municipal Council, as the relevant consent authority, agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its modification application in accordance with the documents below: Reference Description Author/Drawn Date(s) 1385701M_04 BASIX Certificate NSW Department of Planning and Environment 24/09/2024 DA 1002 Rev H Site & Roof Plan MHN Design Union 11/09/2024 DA 2000 Rev J Basement 2 Plan DA 2001 Rev J Basement 1 Plan DA 2002 Rev J Ground Floor Plan DA 2003 Rev I Level 1 Floor Plan DA 2004 Rev I Level 2 Floor Plan DA 2005 Rev I Level 3 Floor Plan DA 2006 Rev I Level 4 Floor Plan DA 2007 Rev I Roof Plan DA 3000 Rev I Elevation South DA 3001 Rev H Elevation North DA 3002 Rev H Elevation East DA 3003 Rev H Elevation West DA 3100 Rev H Section A DA 3101 Rev H Section B DA 3102 Rev C Section C DA 6000 Rev G External Finishes 08/07/2024 DA 6001 Rev B External Finishes LPS4.56 25 - 53/1 Landscape Plans Conzept Landscape Architects 11/09/2024 (Rev. K) LPS4.56 25 - 53/2 LPS4.56 25 - 53/3 LPS4.56 25 - 53/4 LPS4.56 25 - 53/5 LPS4.56 25 - 53/6 LPS4.56 25 - 53/7 pre-conditions 1. Section 4.55(2)(a) of the EPA Act requires the Court, exercising the functions of the consent authority, to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. I am satisfied that the modified development is substantially the same as the development for which consent was originally granted, for the following reasons: * the modified development has substantially the same envelope as the development for which consent was originally granted; * the changes to each unit do not cause any amenity impacts on adjoining neighbours, or the streetscape; * the extent of deep soil is increased by the modified development; * The extent of excavation is marginally increased, being approximately 2-3% greater than the development for which consent was originally granted; and * the modified development reads from the surrounding locality and street as the same development and has no impact on the streetscape. 1. The modification application was notified as required. 2. I accept the Council's submission that the development consent can be modified by the modification application, having regard to the matters under s 4.15(1) of the EPA Act, because the proposal is acceptable on its merits and no other matters arise. 3. The height of buildings development standard under the Woollahra Local Environmental Plan 2014 (LEP 2014) is 13.5 metres at cl 4.3. The height approved was 14 metres. The modification application is for a building height of 16.5m, which exceeds the maximum height limit by 3m. This is associated with access to the roof top terrace. The original plans show this roof terrace as a private roof terrace, but this has been changed to be a communal roof terrace. 4. The floor space ratio (FSR) development standard under LEP 2014 is 1.3:1 at cl 4.4. The FSR approved was compliant. The modification application is for a FSR of 1.7:1. The increase in gross floor area is consistent with the objectives of cl 4.4 of LEP 2014, as the proposal is consistent with the desired future character of the area and the modified development minimises environmental amenity impacts on adjoining neighbours. Conclusion 1. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 25 September 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent No. 136/2023/1 for the substantial demolition of the existing residential flat building and the construction of a new residential flat building with basement car parking, at 206B Victoria Road, Bellevue Hill, is modified by Modification Application No. 136/2023/2, in the terms set out at Annexure A, subject to the consolidated conditions of consent at Annexure B Susan O'Neill 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: 04 December 2024