Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169

Land and Environment Court New South Wales

Medium Neutral Citation: Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169 Hearing dates: 8, 9, 14 August 2013 Decision date: 09 September 2013 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [65] Catchwords: DEVELOPMENT MODIFICATION - Alterations and additions to dwelling house Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Cases Cited: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1151 Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124 Houlton v Woollahra Municipal Council (1997) 95 LGERA 21 Veloshin v Randwick Council [2007] NSWLEC 428 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 Category: Principal judgment Parties: Bocce Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel Ms H Irish (Applicant) Solicitors Mr R Bennett, Pikes & Verekers Lawyers (Applicant) Mr K Webber, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10533 of 2013

Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of an application made by Bocce Pty Ltd (Bocce) under s 96AA of the Act to modify development consent DA706/2010 relating to a residential dwelling at 12 Olola Avenue Vaucluse (the site). 2Development consent DA706/2010 approved the demolition of the existing dwelling and construction of a new residential dwelling at the site. That consent was granted on 5 August 2011 by the Court, in accordance with an agreement reached by the parties under s 34(3) of the Land and Environment Court Act 1979 in proceedings 10355 of 2011. The conditions included condition A.9: Modification of details of the development, which required amendments to the approved plans identified in condition A.3, including: (d) The proposed kitchen windows located on the ground floor (living level) to the eastern elevation shall be highlight windows. These windows are to have a minimum sill height of 1.7m measured from the finished floor level. (e) The first floor (bedroom level) of the building is to be set back 1.2m from the front alignment involving the following: -A reduction in depth to the master bedroom, bedroom 2 and bedroom 3 of 1.2m respectively -A reduction in depth of the roof overhang to the front first floor balconies by 1.2m -The deletion of the side walls adjacent to the front first floor balconies with the exception of a 1m high glazed balustrade. 3The application to modify development consent DA706/2010/1 was made under s96AA to the Council on or about 30 April 2013, after construction work had commenced on the site. The application was stated to be for "internal and external alterations and additions to an approved dwelling house development, including relocation of approved garage, raising of floor levels, provision of undercroft landscape area + external works". On 16 July 2013 Bocce commenced these Class 1 proceedings (the Modification Appeal). On 16 July 2013 the Council refused the application. 4There are other proceedings before the Court relating to the construction work presently being undertaken on the site. On 2 April 2013 the Council received a copy of a Notice of Intention to give Order dated 27 March 2013 by the Principal Certifying Authority to Bocce, to the effect that the development consent DA706/2010 was not being complied with for various reasons. On 15 May 2013 the Council issued an Order (125/2013) in terms of item 19 of s 121B of the Act directing Bocce to cease carrying out works that ar[sic] not in accordance with Development Consent DA706/2010". Bocce lodged an appeal under s 121ZK(1) of the Act against the Order on 31 May 2013 (proceedings 10369 of 2013). On 12 June 2013 Bocce applied to the Council under s 149B of the Act for a building certificate (BC45/13). An appeal against the deemed refusal of a building certificate was lodged on 26 July 2013, proceedings 10571 of 2013 (the Building Certificate Appeal). 5By Motion filed on 16 July 2013 Bocce sought an order that action on the Order be stayed until the later of the determination of the application to modify development consent DA706/2010, or the complete and final determination of any appeal pursuant to s 97AA of the Act in relation to the modification application. On 1 August 2013 Biscoe J heard the Motion, which was resolved on the basis that the three Class 1 proceedings (10396 of 2013, 10533 of 2013, 10571 of 2013) were to be brought forward for hearing together on 8 and 9 August 2013; that there be a consent interlocutory injunction including that the Council be restrained from taking action on the stop work order until final determination of the Modification Appeal; and an order that the applicant not carry out any work on the garage structure until further order. Biscoe J made orders for joint expert reports and other procedural directions to bring the proceedings to a final hearing: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124. 6The hearing of the three appeals commenced on site on 8 August 2013 with a view. When the hearing resumed in Court on 8 August 2013 the parties handed up Consent Orders in proceedings 10396 of 2013, the appeal against the Order. On 9 August 2013 I made the orders (Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1151), by consent, revoking the Order, and noting the following assurance given on behalf of the applicant: In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of section 76A of that Act. 7The parties agreed that the appropriate course is that the Modification Appeal should be determined first, and that resolution of the Building Certificate Appeal will depend on the outcome of that appeal.