Clutch Triple Double Pty Ltd v Council Of The Municipality Of Woollahra

Land and Environment Court (NSW)|2024-03-08

The application is accompanied by a BASIX certificate (Cert No. 1339930M_02) prepared by E-LAB Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.
The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the DA as amended from the provisions of Sustainable Buildings SEPP.

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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that:

(b) Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards - Height of Buildings prepared by GSA Planning dated January 2024.

(c) Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards - Floor Space Ratio (FSR) prepared by GSA Planning dated January 2024.

(d) Photomontages prepared by AE Design Partnership Pty Ltd dated January 2024.

(e) Statutory Declaration regarding site notice dated 16 November 2023.

(f) Addendum to Waste Management Plan prepared by AusWide Consulting dated 4 December 2023.

(g) Revised Traffic and Parking Assessment Report prepared by CJP Consulting Engineers dated 6 December 2023.

(2) The Applicant filed the amended development application with the Court on 4 March 2024.

(1) The Applicant's written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), to vary the height of buildings development standard in clause 4.3 of the WLEP is upheld.

(2) The Applicant's written request prepared by GSA Planning dated January 2024, pursuant to clause 4.6 of the WLEP, to vary the floor space ratio development standard in clause 4.4 of the WLEP is upheld.

(3) The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of Development Application No. DA481/2022 (PAN-278930) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application No. DA481/2022 (PAN-278930), for the demolition of the existing dwelling and construction of a six-storey residential flat building at 440 Edgecliff Road, Edgecliff (Lot 1 in Deposited Plan 562095 and Lot 4 in Deposited Plan 228840), subject to the conditions of consent in Annexure A.

Planning and Assessment Act 1979

Planning and Assessment Regulation 2021

Environment Court Act 1979

The Floor Space Ratio Standard is exceeded

A written request also authored by GSA Planning in accordance with cl 4.6 of the WLEP seeks to justify the contravention of the Floor Space Ratio (FSR) Standard by the proposal (the FSR request).
The FSR request states that the subject site has an area of 1,470.9m², which equates to a maximum GFA of 1,103m². The proposed development will have a GFA of 1,348.10m² and an FSR of 0.92:1. As such, the proposal exceeds the FSR of 0.75:1 permitted on the site by 22.2%.
The exceedance of the FSR is as a result of the ground floor level of the proposed development, being elevated on 'piloti' which provides for an external open area under the building. In the event the ground floor level was deemed to be excluded from the calculation of FSR, the proposed development would comply with the FSR standard.
The FSR request asserts compliance with the FSR standard is unreasonable of unnecessary because the objectives of the FSR standard are achieved, notwithstanding the non-compliance.
The relevant objectives at cl 4.4 are: (a) for development in Zone R3 Medium Density Residential - (i) to ensure the bulk and scale of new development is compatible with the desired future character of the area, and (ii) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and (iii) to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space, …
The parties agree, and I am satisfied that compliance with the FSR standard is unreasonable or unnecessary for the reasons that follow: 1. The bulk and scale of the podium reflects the three to four storey residential buildings to the east of the site. Upper levels provide a transitional height to the neighbours further west. Additional setbacks to the top three levels to present a more recessive building form. 2. The open ground floor area provides communal open space that, if excluded from floor space calculations by virtue of its openness would result in a complying development. The bulk and scale presented is consistent with surrounding buildings, including recently approved development of greater FSR, and so is compatible with the area's desired future character as understood in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112. 3. For reasons identical to those at [16(3)]-[16(6)], the exceedance minimises the adverse environmental effects on the use or enjoyment of adjoining properties and the public domain. 4. Private open space area is allocated to each unit in the form of balconies, deep soil planting complies with the Woollahra Development Control Plan 2015 and the Apartment Design Guide (ADG), and tree canopy cover on the site is conserved and enhanced.
I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the FSR standard for the reasons set out in the FSR request, summarised as follows: 1. When the height, scale and setbacks of the existing and desired future character are taken into account, including recent approvals in the immediate vicinity, the proposal is consistent with its context, and achieves the landscaping and deep soil requirements. 2. The ground floor arear that contributes to the exceedance does not, of itself, result in adverse environmental impacts where lack of environmental impacts is an environmental planning ground as shown in Randwick City Council v Micaul Holdings Pty Limited (2016) 225 LGERA 94; [2016] NSWLEC 7 at [34].
The FSR request also asserts that the proposal is consistent with the objectives of the zone for reasons identical to those at [18], which I accept.
I note here that the Respondent is satisfied that the FSR request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development in the R3 Medium Density Residential Zone.
Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.
Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the FSR development standard under cl 4.4 is justified.
I am satisfied under cl 4.6(4) that the FSR request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R3 zone.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the FSR request.

(1) When the height, scale and setbacks of the existing and desired future character are taken into account, including recent approvals in the immediate vicinity, the proposal is consistent with its context, and achieves the landscaping and deep soil requirements.

(2) The ground floor arear that contributes to the exceedance does not, of itself, result in adverse environmental impacts where lack of environmental impacts is an environmental planning ground as shown in Randwick City Council v Micaul Holdings Pty Limited (2016) 225 LGERA 94; [2016] NSWLEC 7 at [34].

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (3)