COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-309/2023/1 (DA) by Woollahra Municipal Council (Council).
Queen Street Investments Pty Ltd seeks consent for extensive alterations and additions to the existing terraces including demolition of existing workshop building (facade to be retained to Smith Street) and new carparking with studios above at 68, 70 and 72 Queen Street, Woollahra, legally described as Lots 72 and 73 Section B in Deposited Plan 12 (70 and 68), and Lot 1 in Deposited Plan 956671 along with Lot 1 in Deposited Plan 956672 (72).
[2]
Conciliation and agreement between the parties
The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 14 November 2024.
Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.
[3]
Jurisdictional considerations
As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, for the reasons given below.
[4]
State Environmental Planning Policy (Resilience and Hazards) 2021
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). The Contamination Assessment prepared by Metech Consulting (Tab 10 Class 1 Application) confirms that "contamination is unlikely to pose a constraint to the proposed development and that the Site is considered to be suitable for the proposed development under a residential land use setting without the need for any further assessment or management action". The parties are satisfied and I accept that the requirements of s 4.6 are met.
[5]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies as the site is located within the Sydney Harbour Catchment. Chapter 6 requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a 'regulated catchment'. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.
I am satisfied on the basis of the agreement of the parties and the Stormwater Management Design Plan prepared by Stellen Civil Engineering (Tab 16 of Class 1 Application), that the stormwater plans for the proposal ensures that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); and the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).
[6]
Woollahra Local Environmental Plan 2014
The site is located within Zone R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (WLEP). The parties agree and I accept that the proposed development is permissible with consent.
The parties agree and I accept that the DA is consistent with the aims of WLEP and with the objectives of the R2 zone, including:
1. To provide for the housing needs of the community within a low density residential environment.
2. To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.
4. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
5. To ensure development conserves and enhances tree canopy cover.
The proposal does not comply with the 9.5m maximum height limit applying to the land under cl 4.3 of WLEP. A portion of the existing building at 70 Queen Street has a height of 9.65m and exceeds the development standard by 0.15m (1.6%). A portion of the existing building at 72 Queen Street has a height of 10.57m, exceeding the development standard by 2.01m (21.8%). As a consequence, the proposed new second storey walls at 72 Queen Street will have a height up to 10.53m, exceeding the standard by 1.03m (10.8%).
Notwithstanding I am satisfied that consent should be granted as the contravention arises as a result of the existing buildings which are heritage items. I consider that the proposed non-compliance is minor, does not give rise to any significant adverse impacts and is consistent with Council's heritage controls. Having regard to the circumstances of the case I am satisfied, based on the written request prepared by Mersonn Pty Ltd (August 2023) lodged pursuant to cl 4.6 of WLEP, that:
1. sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the retention of heritage items,
2. compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and
3. the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.
I accept the advice of the parties that the DA complies with the other development standards under WLEP.
Clause 5.10 applies because the site contains three heritage listed items in Sch 5 of WLEP and is located within the Woollahra Heritage Conservation Area (C15 WHCA). In accordance with cl 5.10, I have considered the relevant matters including:
1. Heritage Impact Statement prepared by John Oultram Heritage & Design dated November 2023 (Tab 12 of the Class 1 Application),
2. Revised Heritage Fabric Survey and Conservation Strategy prepared by John Oultram Heritage & Design dated December 2024 (see amended Development Application); and
3. Schedule of conservations works prepared by John Oultram Heritage & Design dated December 2024 (see amended Development Application).
The parties agree and I accept that the requirements of cl 5.10 are met.
The Site is identified as containing Class 5 acid sulfate soils (cl 6.1). The DA will not intercept any acid sulfate soils. The limited depth of proposed excavation means that construction is not expected to result in the lowering of any groundwater that may be present in the area (Tab 11, Class 1 Application).
Clause 6.2 applies because the DA proposes excavation works on the site. Before granting consent, subs (3) requires specific matters to be taken into consideration. In accordance with cl 6.2, I have considered the relevant matters and am satisfied that the proposed earthworks will not give rise to any adverse environmental impacts (Statement of Environmental Effects, Tab 7 of Class 1 Application, p 97).
I have considered the matters required by cl 6.9. The Arboricultural Impact Assessment prepared by Treeism Arboricultural Service (Tab 6 of Class 1 Application) states: 'provided the recommendations of this report are adhered to… all trees proposed for retention shall remain viable'. The parties agree and I accept that the DA will minimise the urban heat island effect and minimise adverse impacts on tree canopy.
[7]
Other considerations
Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg.
The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. One submission was received during the exhibition period. Council advises that this has been considered and is satisfactorily addressed in the DA and conditions of consent.
The parties also advised me that they have considered Woollahra Development Control Plan 2015 and that the proposal is generally compliant or otherwise satisfactory in their considered view.
[8]
Conclusion
Based on the above details, 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 Court Act. It follows that I am in turn required 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.
[9]
Orders
The Court orders:
1. Leave is granted to the Applicant to amend Development Application DA309/2023/1 and rely on the amended plans and documents referred to in Condition A.3 at Annexure A.
2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is ordered to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $5,000 within 28 days of the date of this order.
3. The appeal is upheld.
4. Consent is granted to Development Application DA-309/2023/1 (as amended) for extensive alterations and additions to the existing terraces including demolition of the existing warehouse (façade to be retained to Smith Street) and new carparking with studios above at 68, 70 and 72 Queen Street, Woollahra is determined by the grant of consent subject to conditions contained in Annexure A.
[10]
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Decision last updated: 07 February 2025