Land and Environment Court New South Wales Medium Neutral Citation: Elkorr v Woollahra Council [2019] NSWLEC 1000 Hearing dates: Conciliation conference on 20 December 2018 Date of orders: 02 January 2019 Decision date: 02 January 2019 Jurisdiction: Class 1 Before: Horton C Decision: (1) The applicant is granted leave to amend the application and rely on the plans and material listed under Condition A.3 in Annexure 'A'; (2) The applicant's written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 seeking to justify the breach of the Height of Buildings development standard set out in clause 4.3 of the WLEP has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the WLEP. Consequently, the applicants written request is well founded and upheld; (3) The appeal is upheld; and (4) Development consent is granted for Development application DA 146/2018 for alterations and additions to an approved dwelling, subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; alterations and additions Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local environment Plan 2014 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Category: Principal judgment Parties: Danielle Elkorr (Applicant) Woollahra Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) Solicitors: Hall & Wilcox (Applicant) S Puckeridge, Woollahra Council (Respondent) File Number(s): 2018/197981 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application (DA 146/2018) for alterations and additions to an approved dwelling including construction of a new boatshed, construction of raised planters within the dwelling, removal of trees and new landscape works, and reconstruction of the seawall at 9 Sutherland Crescent, Darling Point. 2. The background facts, statutory framework and contentions are detailed in the Council's Statement of Facts and Contentions filed on 7 August 2018. It records that the site is zoned as R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP) and that the development is permissible with consent. 3. The proceedings were commenced pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and allocated by the Registrar to the mandatory conciliation stream of development appeals pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). The matter commenced on site on 20 December 2018 as a conciliation conference under s 34(1) of the LEC Act between the parties, which I presided over. 4. During a view of the site, the Court heard lay submissions from neighbours, and visited a number of apartments located in No.11 Sutherland Crescent. These submissions generally supported the removal of the Fig tree from the seawall, but expressed concern at the loss of view resulting from the proposed construction of raised planter beds. 5. The Applicant sought leave to rely on amended architectural and landscape plans. These plans included the lowering of the height of the proposed planter beds, the removal of a privacy screen proposed in the original application and confirmation of the location of a new tree to replace an existing Fig tree which is proposed for removal. 6. The parties' experts are generally satisfied that the amended plans resolve the contentions. 7. 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. This decision involved upholding the appeal and granting development consent to the development application subject to conditions. 8. 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(1)(a) of the EPA Act. However, there is a jurisdictional prerequisite that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisite has been satisfied in the following terms; 9. The proposed development breaches the Height of Buildings development standard set out in cl 4.3 of the WLEP. 10. The applicant seeks a variation to the development standard in cl 4.3 of the WLEP and has lodged a written request pursuant to cl 4.6 prepared by Mr Karavanas, dated December 2018. I have read the written request and I am satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6 (as set out in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118) for the following reasons. 11. Clause 4.3 of the WLEP provides for a maximum building height of 9.5m on the site. To the extent that the proposed planter beds exceed the numerical height value established by the WLEP, it is relevant that the site is located on the southern edge of an R2 Low Density Residential Zone, adjoining an R3 Medium Density Residential zone which contains a residential flat building of 10 storeys in height; that the overall approved height of the dwelling is unchanged by the proposed works, and that the proposed works will have no additional effect on solar access to adjoining properties. 12. The Applicant acknowledges that the proposed works will impact on views from some units in No.11 Sutherland Crescent. The impact on some units is assessed as comprising a loss of some sky and some water views, while the removal of the Fig tree is assessed to result in a view gain. 13. In my view, and despite the non-compliance, the development achieves the objectives of the development standard and the zoning. Consequently, and based on the evidence before me, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 14. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 15. The orders of the Court are: 1. The applicant is granted leave to amend the application and rely on the plans and material listed under Condition A.3 in Annexure 'A'; 2. The applicant's written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 seeking to justify the breach of the Height of Buildings development standard set out in clause 4.3 of the WLEP has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the WLEP. Consequently, the applicants written request is well founded and upheld; 3. The appeal is upheld; and 4. Development consent is granted for Development application DA 146/2018 for alterations and additions to an approved dwelling, is approved subject to the conditions in Annexure 'A'. ____________________ T Horton 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: 02 January 2019