Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Woollahra Municipal Council (the Council) of DA No 10/2023/1 (the Development Application) for the demolition of the existing residential flat building and construction of a three-storey residential flat building (the Proposed Development) at 17-19 Guilfoyle avenue, Double Bay, NSW 2028, legally identified as Folio CP/SP1464 (the Site).

2. 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 Site and at Council Chambers.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council's Statement of Facts and Contentions. The plans and documents that form part of the development application, as amended, are noted at the end of this judgment under 'Notation'.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties' advice in the Statement, I am satisfied in regard to the following relevant matters.

Woollahra Local Environmental Plan 2014 (WLEP)

6. The Site is zoned 'R3 -Medium Density Residential' under the WLEP and the proposed development for demolition current residential flat building (RFB) and build new RFB and associated landscaping is permitted with consent in the R3 Zone.

Clause 5.10 'Heritage conservation'

7. Pursuant to cl 5.10 of the WLEP, the existing building on the Site is not a heritage item and is not within a heritage conservation area.

Clause 5.21(2) 'Flood planning'

8. The proposed development is within the flood planning area as the Site is mapped on the Flood Planning Map Sheet.

9. Clause 5.21(2) of the WLEP provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied of the matters set out in subcll 2(a) - (e).

10. Further, cl 5.21(3) requires that in deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the matters in subcll (3)(a) - (d).

11. A table that addresses each of the matters in subcll 5.21(2) and (3) is set out in part 5.1 of the Preliminary Flood Assessment and Flood Emergency Response Plan prepared by Martens & Associates, dated 19 October 2023. On the basis of this table and report, the Court is satisfied that the considerations listed in cl 5.21 have been addressed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19683eaa997a352f8e1e4dec)

Disclaimer: Curated by HT Syndication.