COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application DA/510/2018. The development application seeks approval demolition of an existing dwelling house and construction of a new dwelling house, swimming pool and landscape works at 4 and 6 Bayview Hill Road, Rose Bay.
The development application also seeks consent to upgrade the public accessible stairs and lookout to accommodate the proposed garage and entry. The parties submit that, consistent with the decision of the Court in Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259; Claude Neon Ltd v Sydney City Council (1989) 15 NSWLR 724 at [198]; and Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329 at [34], the provisions of the Land and Environment Court Act 1979 (LEC Act) at s. 39(2) provide the Court the power to consent to these works pursuant to cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000. I accept their agreed submissions.
On the 23 November 2018, the Applicant lodged a development application with Woollahra Municipal Council. Following the refusal of the application, the Applicant appealed to the Court. Through the conciliation process, the parties have agreed an amended design for the proposed works. The amendments are broadly:
1. The maintenance of the height of the existing seawall and grassed area fronting the foreshore.
2. The removal of the proposed blade walls to the new residence, demolition of the existing stairs to the foreshore, reduction of the depth of the lower level balcony and the width of the lower western facade. These amendments result in a greater expanse of natural rock being exposed below the proposed dwelling.
3. A reduction in the level of the proposed swimming pool.
4. Reduction in the overall height of the proposed dwelling by 1 metre, and the height of the proposed dome by 600mm. The dome has a consequential amendment to its diameter to 3.5 metres.
5. A reduction in the volume of excavation proposed.
In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference under s 34AA of the LEC Act between the parties, which was held on 14 October 2019. I presided over the conciliation conference.
Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.
As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:
1. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, I accept the position of the parties that the site has a long history of residential use and does not require further specific investigation. I note that no change of use is proposed.
2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 875269S0-07 in compliance with the instrument.
3. State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the development. Division 2 of the SREP details matters that are required to be considered by the Consent Authority prior to determination. In making the following orders, I have taken these matters into consideration.
4. Clause 29 of the SREP requires the referral of the subject application to the Foreshores and Waterways Planning and Development Advisory Committee. Correspondence from the NSW Department of Planning and Environment notes that:
"In referring the proposal to the Committee, Woollahra Municipal Council, as the consent authority, has satisfied its statutory obligation as required under the SREP. The committee raises no specific issues in relation to the proposed development and as such does not wish to make any further comment concerning this matter."
I am satisfied the precondition in clause 29 of the SREP is met.
1. During his oral submissions, an objector from an adjoining property provided the Court with details of the restrictive covenant that burdens the subject site. I accept the agreement of the parties that the covenant is not a bar to consent, due to the operation of cl 1.9A of Woollahra Local Environmental Plan 2014 (LEP), but a relevant matter in considering the merits of the application. This position is consistent with the decision of Robson J in Wenli Wang v North Sydney Council [2018] NSWELC 122. Consistent with s 34(3) of the LEC Act, I am not required to make, and have not made, any assessment of the merits of the development application.
2. Pursuant with the provisions of the LEP, the site is zoned R2- Low Density Residential. The proposed development, dwelling house, is permissible with consent.
3. I am satisfied that consent should be granted notwithstanding the contravention of the height standard at cl 4.3 of LEP. The development standard establishes a maximum height of 9.5m. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of LEP. The amended development application has a maximum height of 14.16m.
4. The Applicant has filed a written request pursuant to cl 4.6 of LEP prepared by Planning Ingenuity Pty Ltd. This request accords with the amended plans. I reviewed the request and in accordance with cl 4.6 of LEP, I am satisfied that:
1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP).
2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP).
3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP are met.
4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP are met.
5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.
6. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.
1. Clause 6.1 of LEP addresses acid sulfate soils. I accept the agreed position of the parties that:
1. the subject site is within a Class 5 area as specified in the Acid Sulfate Soils Map.
2. the subject works will not lower the water table below 1m AHD on any land within 500m of a Class 1, 2 and 3 land classifications.
Accordingly, the proposal is considered to be acceptable with regard to cl 6.1 of the LEP.
1. In deciding whether to grant development consent for the ancillary earthworks proposed by the application, I have given consideration to the matters at cl 6.2 of LEP.
2. Consistent with cl 6.3 Flood Planning of LEP, I am satisfied that the development is: compatible with the flood hazard of the land; will not significantly adversely affect flood behaviour; incorporates appropriate measures to manage risk; will not significantly adversely affect the environment or cause the harm listed at (d); and is not likely to result in unsustainable social and economic costs to the community.
3. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.
4. The proposed conditions of consent require the subsequent Construction Certificate to demonstrate compliance of the proposed pool with the Swimming Pools Act 1992.
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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are:
1. The applicant is granted leave to rely on the amended architectural plans and material as referred to in condition A.3 of the conditions of consent contained at Annexure "A" and the amended clause 4.6 written request at Annexure "B".
2. The Applicant's written request under clause 4.6 of the Woollahra Local Environmental Plan 2014, prepared by Planning Ingenuity (contained at Annexure "B") for contravention of the maximum height development standard imposed by clause 4.3 of the Woollahra Local Environmental Plan 2014 is upheld.
3. The appeal is upheld.
4. Development Application no. DA510/2018 for demolition of existing dwelling house, construction of a new dwelling house, swimming pool, landscape works, publicly accessible stairs and lookout to accommodate proposed garage entry at 4 and 6 Bayview Hill Road, Rose Bay is approved subject to the conditions contained at Annexure "A".
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Commissioner of the Court
Annexure A (577 KB, pdf)
Annexure B (535 KB, pdf)
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Decision last updated: 06 November 2019