Land and Environment Court New South Wales Medium Neutral Citation: Kent Road Prime Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1158 Hearing dates: Conciliation conference on 6 February 2020 and 4 March 2020 Date of orders: 03 April 2020 Decision date: 03 April 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) Leave is granted to the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The clause 4.6 request in relation to the height of buildings development standard contained in cl 4.3 of the Woollahra Local Environmental Plan 2014 and referred to in condition A3 at Annexure B is upheld. (4) The appeal is upheld. (5) Development Application No. 140/2018, initially lodged with the Respondent on 11 April 2018 and as now amended to seek consent for the partial demolition of the existing building and construction of a 3 storey residential flat building with basement level parking, swimming pool and associated site works at 28 Kent Road Rose Bay, is approved subject to the conditions annexed to this agreement at Annexure B. Catchwords: DEVELOPMENT APPLICATION – residential apartment development – conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014 Texts Cited: Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Kent Road Prime Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: B Salon (Solicitor) (Applicant) E Yeo (Solicitor) (Respondent) Solicitors: Mills Oakley Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/174581 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 140/2018 seeking consent for the demolition of the existing building and construction of a 3-storey residential flat building with basement level parking, swimming pool and associated site works at 28 Kent Road, Rose Bay (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 February 2020. I presided over the conciliation conference. 3. 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 the Court upholding the appeal and granting conditional development consent to the development application. 4. I adjourned the conciliation conference to allow the Applicant to prepare amended plans. On 4 March 2020 I further adjourned the conciliation conference to allow for the terms of an agreement to be finally settled by the parties. 5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 March 2020. 6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 7. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons: 1. The site is located within the R3 Medium Density Residential zone as identified by the Woollahra Local Environmental Plan 2014 (WLEP). The provisions of the R3 zone permit residential flat building development with consent that is consistent with the objectives of the zone, which are as follows: * To provide for the housing needs of the community within a medium density residential environment. * To provide a variety of housing types within a medium density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. The site is within the Kent Road Heritage Conservation Area (C11) (HCA) as identified in Schedule 5 of the WLEP and it is on this basis that the provisions of cl 5.10(4) require the Court consider the effect of the proposed development on the heritage significance of the area. On the basis of the amended plans that incorporate the changes agreed between the heritage experts, including the partial retention of the existing building on the site, I am satisfied that the proposed development will not adversely impact the HCA. 2. I have carefully considered the SEPP Affordable Rental Housing Report (Amended) prepared by GSA Planning and dated February 2020, and I accept that the subject site is not properly defined as a low rental building in accordance with cl 49(1) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) for the reasons detailed in the report, and so the provisions of cl 50(2) are not enlivened. 3. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28 (2)(b) and (c). I rely on the statement provided by the architect, Luigi Roselli, in relation to the provisions of the EPA Regulations, and to satisfy cl 28(2)(b) of SEPP 65. 4. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. I am satisfied, on the basis of the Preliminary Contamination Screening report dated 23 February 2018, and the Stage 2 Environmental Site Assessment dated 14 November 2018 prepared by EIS that the site can be made suitable for the proposed development subject to those conditions contained at D17-D20 at Annexure B. 5. Clause 4.3 of the WLEP provides for a maximum building height of 10.5m. The parties are agreed that the roof of the existing building, which is to be retiled, exceeds the height control by a maximum of 2950mm, as does a portion of the new roof by a maximum of 490mm. The Applicant relies on a written request prepared by GSA Planning dated February 2020 pursuant to cl 4.6 of the WLEP to justify the contravention of the height control, wherein the objectives are as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas 1. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the WLEP for the following reasons: * Firstly, compliance with the development standard is unreasonable or unnecessary as the objectives of the height control are achieved notwithstanding the non-compliance with the standard. Specifically, the exceedance is limited to a portion of the site that has been locally excavated for a basement beneath the existing building, is generally consistent with the nearby two-storey buildings in the street, is not evident from the street and does not result in adverse solar impacts on adjoining or nearby properties. * Secondly, the underlying objective of the standard to minimise the effects of building heights on views, loss of privacy, overshadowing and visual intrusion is not relevant to the development and compliance is unnecessary as there are no side views of the exceedance possible due to the outer, complying, edge of the roof form concealing the localised exceedance. Furthermore, to the extent that the portion of the existing roof that is to be retiled exceeds the height control, compliance with the standard is unnecessary as to require compliance would result in an undesirable inconsistency with the remainder of the refurbished building. 1. Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control due to the highly localised exceedance that results from historical excavation for a basement beneath the existing building while demonstrating consistency with the surrounding density and scale of the area, and conforming to the objectives contained the Woollahra Development Control Plan 2015 (WDCP) desired future character for The Rose Bay Precinct, and the Kent Road HCA as set out in the written request. 2. On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, at [7(6)], and the objectives of the zone, at [7(1)], and so is in the public interest for consent to be granted. Furthermore due to the minor nature of the exceedance, the Secretary's concurrence may be assumed in accordance with cl 4.6(4)(b). 1. As the jurisdictional prerequisites to the grant of consent have been addressed 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. Leave is granted to the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The clause 4.6 request in relation to the height of buildings development standard contained in cl 4.3 of the Woollahra Local Environmental Plan 2014 and referred to in condition A3 at Annexure B is upheld. 4. The appeal is upheld. 5. Development Application No. 140/2018, initially lodged with the Respondent on 11 April 2018 and as now amended to seek consent for the partial demolition of the existing building and construction of a 3 storey residential flat building with basement level parking, swimming pool and associated site works at 28 Kent Road Rose Bay, is approved subject to the conditions annexed to this agreement at Annexure B. ………………………. Tim Horton Commissioner of the Court Annexure A (158 KB) Annexure B (679 KB) Plans (4.83 MB) ********** 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: 06 April 2020