Chapman v Woollahra Municipal Council [2018] NSWLEC 1592

Land and Environment Court New South Wales

Medium Neutral Citation: Chapman v Woollahra Municipal Council [2018] NSWLEC 1592 Hearing dates: Conciliation conference on 4 October 2018 Date of orders: 14 November 2018 Decision date: 14 November 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [8] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 55 – Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 2014 Category: Principal judgment Parties: Richard Chapman (Applicant) Woollahra Municipal Council (Respondent) Representation: Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) S Simington, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/125323 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Richard Chapman (the applicant) lodged under s 8.11 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Woollahra Municipal Council (the Council) of development application DA2018/57/1 (the application). The application seeks consent under s 4.16 of the EPA Act for demolition of an existing dwelling and the erection of two attached dual occupancies with basement parking and a pool at Lot 13 in DP 654466, being 37 Bundarra Road, Bellevue Hill (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. 3. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 6. In making the orders, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 7. In making the orders, I also confirm that: 1. The applicable preconditions to consent contained in the Woollahra Local Environmental Plan 2014 (the LEP) have been satisfied. The development is permissible with consent in the R2 zone at Part 2 and is less than the maximum height prescribed of 9.5m pursuant to cl 4.3. The impacts of the earthworks proposed in the application, as amended, have been considered as required by cl 6.2. Strata subdivision of the proposed dual occupancies is no longer proposed as a result of conciliation given the minimum lot size for dual occupancies under cl 4.1A could not be met. The site is the subject of a separate prior approval for a two lot subdivision with the dual occupancies proposed on each of the approved lots. A deferred commencement condition of the consent requires this subdivision to first be registered before the consent can be operational. A second deferred commencement condition requires adequate drainage easements to also be in place between the allotments; 2. A precondition requires consideration under State Environmental Planning Policy No. 55 – Remediation of Land as to whether the land is contaminated and requires remediation. Inspection and evidence indicates that the site has only ever been developed and subsequently used for residential purposes and is not contaminated; 3. Certificates are required to be provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Updated certificates for the amended dwelling designs arising from conciliation have been provided demonstrating compliance with BASIX targets for each dual occupancy and are referenced, and required to be complied with, in the consent; and 4. Sydney Regional Environmental Plan (REP) (Sydney Harbour Catchment) 2005 applies requiring consideration of visual impact of the development when viewed from Sydney Harbour and its foreshores. Based on the documentation provided and the site view undertaken with the parties during conciliation, the development will not be directly visible from the harbour or its foreshores and so no adverse visual impacts from these locations will arise. Therefore, assessment of impacts under the REP is not required. 1. The Court orders that: 1. The Applicant is granted leave to rely upon the amended plans and documents listed in condition A.2 of Annexure "A"; 2. The Applicant is to pay the Respondent's costs, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed; 3. The appeal is upheld; and 4. Development application DA2018/57/1, lodged with the Respondent on 26 February 2018, for construction of 2 x dual occupancies (attached), at 37 Bundarra Road, Bellevue Hill, is approved subject to the conditions set out in Annexure "A".