Gray v Woollahra Municipal Council

Parties: Alexander Gray (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
S Hill (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/292910

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Woollahra Municipal Council of development application DA No 138/2024/1 (the DA). The DA sought consent for the demolition of the existing front wall and gates, and the construction of a new 3.05 metre high front wall with solid pedestrian and vehicular access gates, along with a landscaped planter atop the wall on the land at 13 Olola Avenue, Vaucluse, legally known as Lot 59 of Section 1 in Deposited Plan 9328 (the site).

2. The fence is proposed on the western part of the frontage and set back from the northern property boundary.

3. Woollahra Municipal Council filed its Statement of Facts and Contentions (SOFAC) with the Court on 28 August 2024. The Applicant filed its Statement of Facts and Contentions in reply (SOFAC in reply) with the Court on 4 October 2024.

4. A Joint Expert Report on town planning matters was filed with the Court on 22 January 2025.

5. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 and 19 February 2025. I presided over the conciliation conference, which commenced with an on-site view. The submitter on the DA did not attend the on-site view.

6. On the first day of the conciliation conference, there was an extended discussion at the site which enabled the parties to explore options and agree a solution for the proposed front wall and gates to the site.

7. On the second day of the conciliation conference, the parties advised that they had reached a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

9. The signed s 34 agreement and Annexure A (conditions of consent) and amended plans (the amended DA) were filed with the Court on 19 February 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement).

10. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in its SOFAC.

11. The amended DA includes changes to the proposed development to enhance permeability and landscaping, and to utilise a two-tier fence construction. The parties advise that the amended DA includes the construction of a new high front wall with slatted pedestrian and vehicular access gates comprised of:

12. a 3.05-metre-high portion, which has a landscaped planter atop the portion, with planting intended to hang over the front of the wall; and

13. a 1.8-metre-high portion, which has a planter contained dense, hedge-like planting atop that portion.

14. 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. 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.

15. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

16. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

15. The parties advise that owner’s consent was provided by the Applicant in the lodgement of the DA. The Applicant is not the owner of the site however owners' consent has been provided as an addendum to the Applicant’s SOFAC in Reply.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

16. The DA was notified between 22 May 2024 and 6 June 2024 in accordance with Chapter 6 of the Woollahra Community Participation Plan 2023. One (1) submission was received raising the issue of inadequate or inaccurate information lodged with the DA.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Woollahra Local Environmental Plan 2014

18. The Woollahra Local Environmental Plan 2014 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

19. The proposed development is characterised as development ancillary to a dwelling house, which is a use permitted with consent in the R2 zone;

20. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

21. Clause 4.3 of the LEP relates to the maximum height of buildings (HoB) on the site. The maximum height of buildings on the site is 9.5m. The parties agree that the height of the proposed development complies with the HOB development standard.

22. Clause 4.4 of the LEP relates to maximum floor space ratio. The site is not subject to any maximum floor space ratio pursuant to the Floor Space Ratio Map referred to in cl 4.4(2) of the LEP.

23. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the proposed development will be carried out on land in the vicinity of items of local and state heritage, within the meaning of cl 5.10(5)(c) of the LEP. Notwithstanding this, the Respondent does not state that there is any adverse heritage impact and that it did not exercise its discretion to require a heritage management document to be prepared under cl 5.10.

24. Clause 5.21 of the LEP relates to flood planning. The parties advise that the site is not within the flood planning area as defined under cl 5.21.

25. Clause 6.1 of the LEP relates to acid sulfate soils. The parties advise that:

26. Before granting development consent, the Court is required to consider the eight mandatory considerations in cl 6.2(3) in the LEP;

27. When the DA was before Council, Council's development engineer assessed the proposal and found it was satisfactory subject to standard conditions of consent; and

28. No issue was raised in the Respondent’s SOFAC. Council's standard conditions have been included in the conditions of consent.

29. Clause 6.2 of the LEP relates to earthworks. The parties advise that:

30. Before granting development consent, the Court is required to consider the eight mandatory considerations in cl 6.2(3) of the LEP;

31. When the DA was before Council, Council's development engineer assessed the proposal and found it was satisfactory subject to standard conditions of consent; and

32. No issue was raised in the Respondent’s SOFAC. Council's standard conditions have been included in the conditions of consent

33. Clause 6.9 of the LEP relates to tree canopy cover in zones R2 and R3. The Court must not grant consent unless it has considered the two mandatory considerations relating to tree canopy cover in cl 6.9(3) of the LEP. The parties advise that no trees are to be removed as part of the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies as the land is within the Sydney Harbour Catchment identified in the Biodiversity SEPP.

27. Section 6.6 of the Biodiversity SEPP relates to water quality and water quantity and s 6. 7 of the Biodiversity SEPP relates to aquatic biodiversity. Subsections 6.6(1) and 6.7(1) identify mandatory considerations and ss 6.6(2) and 6.6(2) identify matters about which the Court must be satisfied; and the parties advise that:

28. when the DA was before Council, Council's development engineer assessed the proposal and found it was satisfactory subject to standard conditions of consent;

29. No issue was raised in Council's SOFAC; and

30. Council's standard conditions have been included in the conditions of consent.

31. Sections 6.8-6.10 of the Biodiversity SEPP contain considerations on matters which the parties advise are plainly inapplicable to the circumstances of the proposed development and that these matters do not create a jurisdictional impediment to approval.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

30. The parties advise that:

31. In this case, the site has a history of residential use and information held by Council does not indicate any evidence of contamination. Accordingly, the Court can be satisfied the land is not contaminated; and

32. Further, no change of land use is proposed as part of the application and s 4.6(2) of the Resilience SEPP does not apply.

33. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site can be made suitable for the proposed development.

Woollahra Development Control Plan 2015

32. The parties advise that the relevant requirements of the DCP as raised by the Respondent in the SOFAC have been considered and satisfied.

Conclusion

33. Having considered the advice of the parties provided above at [15]-[32], I am satisfied that:

34. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

35. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

36. approval of the proposed development is in the public interest.

37. Further, 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.

38. 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.

39. The Court notes:

40. that Woollahra Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA No. 139/2024/1 made on 19 February 2025 to rely on the documents specified below:

| Drawing | Dated | Prepared or Drawn By | | External Wall Plan + Elevations DA-01 Rev F | 19 February 2025 | Studio Jos | | External Wall Plan + Elevations DA-02 Rev F | 19 February 2025 | Studio Jos | | External Wall Plan and Elevations DA-03 Rev F | 19 February 2025 | Studio Jos | | External Wall Plan and Elevations DA-04 Rev F | 19 February 2025 | Studio Jos |

37. The Court orders that:

38. The appeal is upheld.

39. Development consent is granted to development application No. 139/2024/1 for the demolition of existing fence and the erection of a new fence at No. 13 Olola Avenue, Vaucluse, legally known as Lot 59, Section 1, Deposited Plan No. 9328, subject to the conditions set out in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (411417, pdf)

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