Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1392 | Case summary

Land and Environment Court (NSW)|2024-04-26

JUDGMENT

These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA30/2021 granted by the Court on 28 October 2021 in Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1662.
The application proposes works to the approved ground floor unit of the existing residential flat building at 780-786 New South Head Road, Rose Bay to revert it back to a dual unit arrangement, add a private gym and pool terrace in the area above the approved basement, and to reconfigure the existing car park to accommodate changes due to service requirements.
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 26 April 2024. I presided over the conciliation conference.
During that process, the Council approved, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the applicant amending the modification application to address the contentions raised in the Council's Statement of Facts and Contentions. The documents comprising the amended modification application are set out in the table below and were filed with the Court on 14 June 2024. Tab 1. Architectural plans Drawing Number Plan name Date Revision Prepared By DA000 Cover Sheet 1 May 2024 G Woods Bagot DA001 Project Summary 1 May 2024 F Woods Bagot A DA102 Basement Level B1 1 May 2024 G Woods Bagot DA103 Lower Ground Floor Plan 1 May 2024 G Woods Bagot DA104.2 Ground Level 1 May 2024 G Woods Bagot DA105 Level 01 1 May 2024 G Woods Bagot DA106 Level 02 1 May 2024 G Woods Bagot DA107 Roof Plan 1 May 2024 G Woods Bagot DA201 Elevations - East and North 1 May 2024 G Woods Bagot DA202 Elevations - West and South 1 May 2024 G Woods Bagot DA301 Section A 1 May 2024 F Woods Bagot DA302 Section B 1 May 2024 F Woods Bagot DA520 FSR Diagram 1 May 2024 F Woods Bagot DA550 Private Open Space _ Natural Ventilation Diagram 1 May 2024 F Woods Bagot DA560 Storage Diagram 1 May 2024 F Woods Bagot Tab 2. Stormwater plans Drawing Number Plan name Date Revision Prepared By C-01 Cover Sheet 3 April 2024 E Enscape Studio C-05 Sediment & Erosion Control Plan & Details 27 February 2024 D Enscape Studio C-10 Stormwater Management Plan - Basement 1 3 April 2024 F Enscape Studio C-11 Stormwater Management Plan - Lower Ground 3 April 2024 H Enscape Studio C-12 Stormwater Management Plan - Ground 29 February 2024 F Enscape Studio C-15 Stormwater Management Details 3 April 2024 F Enscape Studio Tab 3. S138 Civil Engineering Works Drawing Number Plan name Date Issue Prepared By C-00 Cover Sheet 7 March 2024 B Enscape Studio C-20 Street Frontage Plan & Driveway Cross Sections 14 March 2024 G Enscape Studio C-21 Southern Footpath Works 22 November 2023 A Enscape Studio C-24 Public Footpath Long Section 5 February 2024 A Enscape Studio C-25 Stormwater Connection Details 8 November 2023 A Enscape Studio C-26 Public Domain Details - Sheet 1 2 May 2024 D Enscape Studio C-27 Public domain Details - Sheet 2 3 April 2024 C Enscape Studio C-28 Public Domain Details - Sheet 3 3 April 2024 A Enscape Studio Other documents Description Date Tab 4. Schedule of amendments prepared by Woods Bagot undated Tab 5. Response to contentions re ceiling cornices prepared by Architectural Projects (with enclosures). 4 March 2024

Having resolved the contentions raised, the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters:

Substantially the same

The modification application is accompanied by a Statement of Environmental Effects prepared by GSA Planning (SEE) (Tab 3 of the Class 1 Application).
The Council submits and I accept that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view I have had regard to section 1.0 of the SEE and accept that:

The original consent approved alterations and additions to the existing residential flat building which contained six self-contained dwellings (alterations and additions DA). After modification the development will continue to be used as a residential flat building.
After modification the external envelope and appearance of the heritage building (including the degree of articulation) will remain predominantly as approved that originally approved under the additions and alterations DA.
The built form and façade are generally the same as what was approved under the alterations and additions DA.
The proposed modification will retain the number of storeys above ground, including the number of units (6). The approved, compliant building height will not be increased. Minimum setbacks will be retained.
The proposed modification will not alter solar access to neighbouring properties or result in any view impacts.

During the course of the proceedings the applicant provided amended and/or additional plans and reports to the Council.
The Council is satisfied that on the basis of the amendments made by the applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Section 100(3) 'Content of modification application'

BASIX certificate no. 1316782M_06 was issued on 16 November 2023 (Tab 12 of the Class 1 Application).

Notification

The Council submits that the modification application was notified in accordance with the EPA Act and the Woollahra Community Participation Plan, in satisfaction of s 4.55(2)(c) of the EPA Act between 17 January 2024 to 1 February 2024.
Two submissions were received.
The Council submits that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments or the imposition of conditions.

Conclusion and orders

As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.
The Court orders: 1. The application is granted. 2. Development consent DA30/2021 granted by the Land and Environment Court on 28 October 2021 is modified in the terms set out in Annexure A. 3. Development Consent DA30/2021, as modified, is Annexure B. ………………… S Dixon Senior Commissioner of the Court Annexure A Modified Conditions (280377, pdf) Annexure B Consol Conditions (1156953, 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: 09 July 2024

BASIX certificate no. 1316782M_06 was issued on 16 November 2023 (Tab 12 of the Class 1 Application).

The Council submits that the modification application was notified in accordance with the EPA Act and the Woollahra Community Participation Plan, in satisfaction of s 4.55(2)(c) of the EPA Act between 17 January 2024 to 1 February 2024.
Two submissions were received.
The Council submits that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments or the imposition of conditions.

As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.
The Court orders:

(1) The application is granted.

(2) Development consent DA30/2021 granted by the Land and Environment Court on 28 October 2021 is modified in the terms set out in Annexure A.

(3) Development Consent DA30/2021, as modified, is Annexure B.

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2000

Planning and Assessment Regulation 2021

Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council

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