Moshav Development Rose Bay Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1122

Land and Environment Court New South Wales

Medium Neutral Citation: Moshav Development Rose Bay Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1122 Hearing dates: 21 February 2017 Date of orders: 21 February 2017 Decision date: 21 February 2017 Jurisdiction: Class 1 Before: Maston AC Decision: 1. The appeal is upheld 2. Development Consent is granted to development application DA 60/201/61 as amended on 16th and 24th May, 2016 and on 20 October 2016 pursuant to an Order of the Court for the demolition of three existing mixed use developments and for the erection of 21 residential units, 3 shops, a retail / commercial space and 32 basement car parking spaces on lots 1 and 2 in DP573356 and Section B, Lot 35 in DP4247; known as 554 – 564 Old South Head Road, Rose Bay subject to the conditions contained in Annexure 'A' hereto. 3. The exhibits may be returned other than exhibit 'A'. Category: Principal judgment Parties: Moshav Development Rose Bay Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel:

Solicitors: A Whealy, Mills Oakley (Applicant) J Hewitt, HWL Ebsworth (Respondent) File Number(s): 2016/00239722 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) from the deemed refusal of development application DA60/201/61 ( as amended on 16 and 24 May 2016 and by order of the Court on 20 October 2016 ) for demolition of three existing mixed use developments and for the erection of 21 residential units, three shops, and one retail and commercial space, together with 32 basement car parking spaces at 554 564 Old South Head Road, Rose Bay. The proposal is permissible with development consent under the Woollahra Local Environmental Plan 2014 except insofar as existing use rights under Division 10 of part 4 of the Act are relied upon. In this regard I am satisfied that existing use rights subsist for that part of the development site known as 560 – 564 Old South Head Road, Rose Bay . 2. There are no longer any contentions raised by the council and it takes the stance of neither consenting nor opposing the grant of development consent. Agreed conditions of consent have been tendered. 3. The hearing today was listed to commence on site. I attended the site with the parties' representatives and their expert witnesses. No objector attended. Thereafter the matter continued in open court. The plans of the proposed development as amended have been tendered in the proceedings and will remain on the court file. 4. The joint expert report of the expert town planners, Mr David Booth for the council and Mr George Karavanas for the Applicant, was also tendered, along with the council's bundle of documents. The development application is supported by two requests pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 to vary the height control and the floor space ratio control or development standards with respect to the relevant parts of the development site. The request relating to FSR is found in annexure C to the joint expert report of the planners and the request with respect to height can be found in the statement of environmental effects filed with the application. 5. Having regard to the objections lodged by objectors and submitters to the development application, together with the documents tendered and the cl 4.6 request documents, I am satisfied that the matters that I need to be satisfied of with respect to those requests are satisfactory and that the requests should be allowed. Overall I find the development to be suitable for the grant of development consent and I will make orders accordingly. 6. I raised the question of the concurrence of the Secretary in the Department of Planning and Environment to the cl 4.6 requests and the parties have confirmed that the Department of Planning Circular PS08 003, called "Variations to Development Standards," dated 9 May 2008, which is a notice under s 64(1) of the Environmental Planning and Assessment Regulation 2000, has the effect that there is no necessity to expressly refer to that matter in the requests themselves, and that I can accept that the matters to be taken into account by the Secretary have been taken into account under delegation and are satisfactory. 7. I make the following orders: 1. The appeal is upheld 2. Development Consent is granted to development application DA 60/201/61, as amended on 16th and 24th May, 2016 and on 20 October 2016 pursuant to an Order of the Court, for the demolition of three existing mixed use developments and for the erection of 21 residential units, 3 shops, a retail / commercial space and 32 basement car parking spaces on lots 1 and 2 in DP573356 and Section B, Lot 35 in DP4247; known as 554 – 564 Old South Head Road, Rose Bay subject to the conditions contained in Annexure 'A' hereto. 3. The exhibits may be returned other than exhibit 'A'. ________________ John Maston Acting Commissioner of the Court 239722.16 Maston Annexure A (C) (490 KB, pdf) 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: 10 March 2017