Land and Environment Court New South Wales Medium Neutral Citation: Coopes Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1560 Hearing dates: Conciliation conference on 6 November 2019 Date of orders: 19 November 2019 Decision date: 19 November 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court Orders: (1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition A.8 at Annexure 'A'. (2) The Appeal is upheld. (3) Modification Application DA 212/2017/2 seeking to modify Development Consent DA212/2017 for significant alterations and additions to an existing commercial building at 3 Knox Street, Double Bay, including two new residential levels and a roof terrace above containing 1 x 4 bedroom unit and 1 x 1 bedroom unit, new lift and reconfiguration of the commercial levels at 3 Knox Street, Double Bay is approved subject to the conditions at Annexure "A". Catchwords: MODIFICATION APPLICATION – flood barrier – 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 Category: Principal judgment Parties: Coopes Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: D O'Donnell (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Dentons (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/232556 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against part refusal by Woollahra City Council (hereafter the Council) of Modification Application (MA) identified as DA 212/2017/2, seeking to delete Condition C.15(a) and modify C.2(d) as it relates to a mechanical flood barrier in the lobby and exit door swing, respectively, on Lot 1 DP 100709, also known as 3 Knox Street, Double Bay (hereafter the Site). 2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 3. The Court convened a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979), which was held on 6 November 2019 in Court. I presided over the conciliation conference. There were no objectors heard at this conciliation. 4. At the conciliation, the Court heard from the parties that the applicant no longer presses modification of condition C.2(d), and therefore the appeal relates solely to condition C.15. 5. 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 is to uphold the appeal and grant consent to the MA (DA 212/2017/2), which modifies consent DA 212/2017. 6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act 1979 to grant consent to the MA (DA 212/2017/2) with conditions. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A) of the EPA Act 1979, as consistency with Woollahra Local Environmental Plan 2014 (WLEP) and the Woollahra Development Control Plan 2015 (WDCP). The parties agree that the amended plans and proposed conditions of consent relate to the merits of the proposal. 8. The parties agree that the relevant provisions of the WLEP are addressed to their satisfaction by the amended plans to the MA under appeal. The parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contention as it relates to the flood planning standard, specifically cl 6.3 of the WLEP. The proposed treatment of the flood barrier and lift mechanism in the event of a flood, satisfies the objectives of the (cl 6.3) development standard, and the relevant controls of the WDCP. 9. The parties agree that the proposed modification, which is limited to the lift and flood barrier, is substantially the same as already approved and there are no known environmental impacts as a result of the amendment to C.15 of the DA consent. The MA was notified between 17 and 31 October 2018 consistent with the WDCP, with no submissions received. There are no concurrence requirements. 10. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the MA, based on the amended plans as provided and the conditions of consent, satisfies the requirements of s 4.55(1A) of the EPA Act 1979. 11. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 12. The Court orders: 1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition A.8 at Annexure 'A'. 2. The Appeal is upheld. 3. Modification Application DA 212/2017/2 seeking to modify Development Consent DA212/2017 for significant alterations and additions to an existing commercial building at 3 Knox Street, Double Bay, including two new residential levels and a roof terrace above containing 1 x 4 bedroom unit and 1 x 1 bedroom unit, new lift and reconfiguration of the commercial levels at 3 Knox Street, Double Bay is approved subject to the conditions at Annexure "A". ………………………… S Bish Commissioner of the Court Annexure A (626 KB) Ground Floor Plan (167 KB) First Floor Plan (153 KB) Second Floor Plan (234 KB) Floor Elevator Lobby Details (154 KB) ********** 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: 19 November 2019