Land and Environment Court New South Wales Medium Neutral Citation: Anka Double Bay Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1051 Hearing dates: Conciliation conference on 8 February 2019 Date of orders: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Class 1 Before: Gray C Decision: See [11] below Catchwords: DEVELOPMENT APPLICATION – shop top housing - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Anka Double Bay Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) Solicitors: Reid & Vesely (Applicant) M Harker, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/96696 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for demolition of existing structures and the construction of a seven storey mixed use development containing 39 units at 30-36 Bay Street and 2 Guilfoyle Avenue, Double Bay (Lot 1 DP 66867 and Lot 1 DP 82635). Following the expiry of the period after which a development application is deemed to be refused, Anka Double Bay Pty Ltd ("Anka") lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. History of the proceedings 1. The appeal was commenced on 27 March 2018. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("Court Act"), which was held on 2 October 2018. Commissioner Chilcott presided over the conciliation conference. A number of resident objectors spoke at the commencement of the conciliation conference, which commenced with a site inspection. The parties were unable to reach an agreement and the conciliation conference was terminated. The termination report, given pursuant to s 34(4)(a) of the Court Act, stated as follows: "The Parties reached agreement in principle on the basis of amended plans and discussions during the conciliation conference. However, the outcomes of the conciliation conference required further significant amendment to plans, preparation of additional studies, re-exhibition of plans and confirmation of acceptability of plans from the Sydney Eastern City Planning Panel. As a consequence of the Parties inability to confirm the final basis for conclusion of a s34 agreement, the s34 conference was terminated." 1. On 28 November 2018, Anka was granted leave to amend the development application to rely on amended plans. The Council notified the amended plans, and assessed the amended development application. As a result of that assessment, on 31 January 2019 the parties contacted the Registrar by Online Court, indicating that they had reached an in principle agreement and requesting a date before the Duty Commissioner. 2. The Court then arranged a further conciliation conference under s 34(1) of the Court Act between the parties, which was held on 8 February 2019. I presided over the conciliation conference. 3. It is generally not customary for the Commissioner to hear from objectors at a second conciliation conference, listed without a site inspection, after the objectors have had the opportunity to give evidence or make submissions at an earlier conciliation conference. Notwithstanding this, at the commencement of the conciliation conference on 8 February 2019, Mr Young spoke on behalf of the Double Bay Residents Association. An agreement was reached 1. At the conciliation conference on 8 February 2019, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision was for the grant of development consent, subject to conditions. 2. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons: * The development works are for the purposes of shop top housing, which is a permissible use in the B2 Local Centre zone pursuant to the Woollahra Local Environmental Plan 2014 ("WLEP 2014"). * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 14.7m for 2 Guilfoyle Ave and 18.1m for 30-36 Bay Street, pursuant to cl 4.3 of the WLEP 2014. The proposed maximum height of 19.96m to the top of the parapet within 30-36 Bay Street represents a contravention of 1.86m above the numerical standard. There is also a contravention by the lift overrun, which is 3.16m above the height development standard. Within 2 Guilfoyle Avenue the proposal complies with the height development standard. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP 2014, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the proposal to provide a similar built form to the 6-storey development to the east so that it can firstly achieve the objectives of the WLEP 2014 for corner sites and secondly provide adequate definition for the space around Guilfoyle Park. An additional environmental planning ground addressed by the request is that the building has been raised by 1.22m to minimise the flood impacts, which justifies part of the breach. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, for the reasons outlined in the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * That part of the proposed development that is on 30-36 Bay Street benefits from the floor space ratio ("FSR") of 3:1 permitted by cl 4.4A, on the basis that firstly it is a prominent corner site within Area 1 and secondly I am satisfied the development will be compatible with the desired future character of the zone in terms of building bulk and scale. I form this state of satisfaction as the proposed development is contextually compatible, is consistent in height and has a similar setback with recently approved and similar types of developments immediately adjoining, provides a design that is consistent with the Council's prescribed envelope controls for this corner site, and provides a suitable transition between the business and residential zones. * Based on the Design Statement prepared by Group GSA dated 31 October 2018, as required by cl 30(2) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. * Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires consideration as to whether the land is contaminated and requires remediation. A report on a preliminary site investigation for contamination, which was provided with the application, indicates that the site can be made suitable for the proposed development subject to further assessment and any remedial activity found necessary by the further assessment. That further assessment and remedial activity has been included in the conditions of development consent. 1. There were no other jurisdictional prerequisites that were identified by the parties, or by Mr Young on behalf of the Double Bay Residents' Association, as matters that need to be satisfied prior to a grant of development consent. Whilst Mr Young pointed out that the Council is subject to the control and direction of the Sydney Eastern City Planning Panel, pursuant to s 8.15(4) of the EPA Act, the Council is represented by Mr Harker, a legal representative who signed the agreement on behalf of the Council. I can therefore assume that as its legal representative, Mr Harker has the requisite authority to enter into the agreement on behalf of the Council, and that the authority given to him to do so is proper and lawful (including that there is no breach of s 8.15(4)). Outcome 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the Court Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant's written request, prepared by Brett Brown of Ingham Planning Pty Ltd and dated October 2018, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 ("WLEP") in relation to clause 4.3 of the WLEP has been considered and the necessary state of satisfaction under clause 4.6(4) of the WLEP has been met. Consequently, the Applicant's written request is well founded and is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA359/2017/1 for the demolition of existing structures and construction of a five storey mixed use development containing 13 dwellings, ground and first floor level commercial premises and first floor level parking on Lot 1 in Deposited Plan 66867 and Lot 1 in Deposited Plan 82635, known as 30-36 Bay Street and 2 Guilfoyle Avenue, Double Bay, subject to the conditions of consent in Annexure A. ………………………. Commissioner Gray Annexure A (800 KB, pdf) Plans (16.9 MB, 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: 12 February 2019