Larcombe v Woollahra Municipal Council

Texts Cited: Woollahra Community Participation Plan

Category: Principal judgment

Parties: Clayton Larcombe (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Pickles (Applicant)
J Reid (Respondent)
Solicitors:
Project Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2024/437300

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Woollahra Municipal Council, of DA 392/2024/1 which seeks consent for the demolition of existing structures and construction of a new three-storey dwelling, swimming pool and tennis court and associated landscaping and siteworks at 65 Victoria Road, Bellevue Hill.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18-19 February 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately respond to the Council’s contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified, and explained how each has been satisfied. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Woollahra Community Participation Plan from 23 October to 7 November 2024. One submission was received and the same resident made an oral submission at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The subject site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to WLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. The proposed development exceeds this with a maximum height of 13.852m.

11. As a result of this exceedance, cl 4.6(3) of the WLEP allows the applicant to request a contravention of this development standard, by demonstrating that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicant has submitted a document prepared by CPW dated 17 February 2025 (the cl 4.6 request). Pursuant to WLEP cl 4.6, I am satisfied that:

12. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance.

13. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

(a) The building maintains a scale along the street that confirms the existing and desired future character of the area, as the roof form is approximately the same height as those on adjoining properties. (b) The breach of the height standard will not result in any unacceptable environmental impact on neighbouring properties or the public domain.

3. I therefore accept that the contravention is adequately justified in accordance with WLEP cl 4.6.

4. WLEP cl 4.4E(3) establishes a maximum floor space ratio (FSR) for the site of 0.5:1, which the proposed development meets, and does not exceed.

5. The site is not identified as a heritage item, nor located within a heritage conservation area.

6. The site is located within a flood planning area. From the parties’ submission, the agreed conditions of consent and the Flood Risk Management Report by Partridge Hydraulic Pty Ltd dated 8 September 2024, I accept that the proposed development meets the requirements of WLEP cl 5.21. I note that, although the proposed basement is lower than the flood planning level (FPL), the potential flood entry points are protected at a level that is greater than the FPL. I further note that there is reliable evacuation access for pedestrians from the lowest habitable floor area to a refuge area above the probable maximum flood level.

7. Pursuant to WLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however does not involve works within 500m of adjacent Class 1, 2 or 3 land that is below 5m AHD and by which the water table is likely to be lowered below 1m Australian Height Datum on that adjacent land. Subsequently, an acid sulfate soils management plan is not required in this case, and the provisions of cl 6.1 are met.

8. From the parties’ submission, the Preliminary Geotechnical and Hydrogeological Investigation Report by Douglas Partners dated 6 September 2024, the Structural Engineering Report by Partridge Structural Pty Ltd dated 11 September 2024, and the agreed conditions of consent, I accept that the earthworks-related matters listed under WEP cl 6.2 are met, and that the proposed earthworks are acceptable.

9. Pursuant to the tree canopy cover requirements of WLEP cl 6.9, from the Landscape Plans by Myles Baldwin Design dated 18 February 2025, the agreed conditions of consent and the parties’ submission, I accept that the proposed development enables the planting of trees to minimise the urban heat island effect and will avoid, minimise and mitigate adverse effects on the existing tree canopy.

10. The site is located within the Sydney Harbour Catchment, and therefore Div 2 of Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. From the parties’ submissions, the agreed conditions of consent and the Stormwater Management Plans by Partridge dated 10 September 2024, I accept that the requirements of Ch 6 of the SEPP B&C relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

11. In accordance with the requirements of the State Environmental Planning Policy (Sustainable Buildings) 2022, the development is a BASIX affected building pursuant to the EPA Regulation. Accordingly, a BASIX certificate accompanies the amended application.

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated and, if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the information contained in the Statement of Environmental Effects by City Planning Works dated 18 September 2024 (SEE), I accept that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

Conclusion

21. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

23. The Respondent as the relevant consent authority approves, pursuant to s 38 of the EPA Regulation, to the applicant amending Development Application No. DA392/2024/1, to include the following plans and documents, which were provided to the Court on 19 February 2025:

| Reference | Description | Author | Dates | | DA.000 Rev E DA.001 Rev C DA.002 Rev D DA.004 Rev D DA.005 Rev C DA.006 Rev D DA.100 Rev E DA.101 Rev C DA.102 Rev D DA.103 Rev D DA.104 Rev E DA.200 Rev D DA.201 Rev D DA.202 Rev D DA.203 Rev E DA.300 Rev E DA.300.1 A DA.301 Rev E DA.302 Rev D DA.303 Rev B DA.304 Rev A DA.400 Rev D DA.401 Rev D DA.402 Rev D DA.403 Rev B DA.405 Rev E DA.406 Rev B DA.500 Rev E DA.501 Rev D DA.600 Rev D DA.700 Rev E | Cover Sheet Site Survey Demolition Plan 3D – Massing Envelope and Max Building Height Setback and Excavation Calculations Area and Landscape Calculations Proposed Site Plan Proposed Basement Floor Proposed Ground Floor Proposed First Floor Proposed Second Floor North Elevation South Elevation West Elevation and Street View East Elevation Section A-A Section A-A Call-Out Section B-B Section C-C Section D-D Section E-E Shadow Diagram – 9AM Winter Solstice Shadow Diagram – 12PM Winter Solstice Shadow Diagram – 3PM Winter Solstice Existing Views from the Sun – 21ST June Revised Views from the Sun – 21ST June Compliant Envelope Views from the Sun – 21ST June Overlooking Plan Analysis Overlooking Section Analysis External Material Finish Notification Plan | Rob Mills Architecture | 18/02/2025 07/02/2025 18/02/2025 12/02/2025 07/02/2025 12/02/2025 18/02/2025 07/02/2025 18/02/2025 18/02/2025 18/02/2025 12/02/2025 12/02/2025 12/02/2025 18/02/2025 18/02/2025 18/02/2025 18/02/2025 12/02/2025 12/02/2025 18/02/2025 12/02/2025 12/02/2025 12/02/2025 12/02/2025 18/02/2025 12/02/2025 18/02/2025 12/02/2025 12/02/2025 18/02/2025 | | Landscape DA documentation – Rev B DA_01 Rev B DA_02 Rev B DA_03 Rev B DA_04 Rev B DA_05 Rev A DA_06 Rev A DA_10 Rev B DA_11 Rev B DA_45 Rev A DA_50 Rev A | Landscape plans | Myers & Baldwin Design | 18/02/2025 18/02/2025 18/02/2025 18/02/2025 18/02/2025 18/02/2025 18/02/202518/02/2025 12/09/2024 12/09/2024 | | Arborist Impact Assessment (AIA) | AIA Report – Version 5 | Growing My Way Tree Services | 18 February 2025 | | Version 4 | Clause 4.6 Variation Request | CPW | | | 1739916S_04 | BASIX Certificate | Ecological Design Pty Ltd | 17/02/2025 |

23. The Court orders:

24. The appeal is upheld.

25. Development Application No. DA392/2024/1 for the demolition of existing buildings, construction of a three-storey dwelling, swimming pool, tennis court and related landscaping on the land at 65 Victoria Road, Bellevue Hill NSW 2023, known as Lot 5 in DP 8589, is determined by the grant of consent, subject to the conditions contained in Annexure A.

E Washington

Commissioner of the Court

Annexure A

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