Australia, April 19 -- New South Wales Land and Environment Court issued text of the following judgement on March 18:

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:

1) 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.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195a13356fee50ec5389699d)

Disclaimer: Curated by HT Syndication.