Aland B & W Pty Ltd v Council of the Municipality of Woollahra

[2025] NSWLEC 1456

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aland B & W Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1456

Hearing dates:

Conciliation conference on 2 June, and 6 June 2025: final submissions 20 June 2025

Date of orders:

25 June 2025

Decision date:

25 June 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend the application to rely on the plans and documents set out in Annexure A.

(2) The appeal is upheld.

(3) Development Consent No. DA441/2022/1 is modified in the terms in Annexure B.

(4) Development Consent No. DA441/2022/2 as modified by the Court is Annexure C.

Catchwords:

MODIFICATION APPLICATION – dwelling house development – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, Ch 4

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Woollahra Local Environmental Plan 2014, ss 4.6, 5.10, 6.1, 6.2, Sch 5

Cases Cited:

Sydney City Council v Ilenace Pty Ltd (1984) 54 LGRA 217; [1984] 3 NSWLR 414

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Aland B & W Pty Ltd (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
D Loether (Solicitor)(Applicant)
R Bullmore (Solicitor)(Respondent)

Solicitors:
Bartier Perry (Applicant)
Council of the Municipality of Woollahra (Respondent)

File Number(s):

2025/94954

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is in respect of development for the purpose of alterations and additions to a dwelling house located at 42 Wentworth Road, Vaucluse, legally known as Lot 1 DP 315736 for which development consent was originally granted on 1 June 2023 (the June Consent).

2. The Applicant now seeks to modify the June Consent, pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act). To this end, Modification application No DA441/2022/1 was lodged with Woollahra Municipal Council (the Council) on 16 July 2024, and was publicly notified between 7 August-22 August 2024.

3. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (LEC Act) on 2 June 2025, at which I presided.

4. Prior to the conciliation conference, the Applicant prepared amended plans and other documents that, in the view of the Council at the commencement of proceedings, addressed the matters in contention subject to an adjournment to settle agreed conditions of consent.

5. On the basis of those amended plans, and the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Council approved the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 13 June 2025, and further material provided to the Court in the days following.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. Under s 34(3) of the LEC 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 parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [33].

9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

10. First, as the appeal is made pursuant to s 4.55(2) of the EPA Act, as the presiding Commissioner, I must be satisfied that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.

11. A stream of authorities has held that the term “modify” means “to alter without radical transformation” (Sydney City Council v Ilenace Pty Ltd (1984) 54 LGRA 217 at 223; [1984] 3 NSWLR 414, 420, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 473; [1998] NSWSC 163 (Michael Standley), Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [14], and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects) at [27]).

12. The means by which consent may be modified is facultative and beneficial, as shown in Michael Standley, at p 474, and the comparison required by s 4.55(2)(a) of the EPA Act is between the development as modified and the development as originally approved.

13. This comparative exercise is not to be undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted): Moto Projects at [56].

14. With respect to s 4.55(2) of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted for the reasons that follow:

1. In qualitative terms, the proposed development remains defined as substantial alterations and additions to an existing multi storey dwelling house over basement carparking, and broadly within the envelope of the June Consent.

2. In quantitative terms, the proposal maintains the floor space ratio of the original consent setbacks, extent of landscaping and number of car parking spaces and the like. To the extent the volume of excavation varies from the original consent, it is a reduction. To the extent the height is greater, and exceeds the height standard of 9.5m that applies to the site, the existing building likewise exceeds the height standard.

3. The parties agree that the proposed modifications, which include the exceedance, contribute to the contemporary character of the dwelling and ensure compatibility with the desired future character of the neighbourhood. The proposed skylight hatch and roof-mounted solar panels will not be visible from the street or surrounding development. The proposed modifications will not result in adverse shadowing or view impacts.

4. The parties agree that the proposed technical height exceedance is appropriate in the circumstances of this particular case and the proposed modifications remain consistent with the objectives of the height development standard contained in the WLEP.

15. As shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], s 4.55(2) is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the WLEP does not apply to modification applications.

16. The parties also agree that the proposed development, as proposed to be modified, achieves the relevant objectives of the Woollahra Development Control Plan 2015 (WDCP) in respect of the following:

1. While the proposed modification includes rear fencing increase of 400mm above the height limit of 1.8m, such a height ensures amenity and privacy for future occupants utilising the rear private open space area. Furthermore, the design of the fencing and associated planters ensure the proposed modifications contribute positively to the streetscape, does not result in adverse amenity impacts, and is consistent with the architectural character of the area.

2. The Revised Landscape Plans prepared by A Total Concept Landscape Drawing Number L/00 Revision G, as modified, demonstrate conformity with the numerical controls for deep soil landscaped area contained Part B3.7.1 of the WDCP. The proposed deep soil landscape area is 36.7% of the total site area, being greater than the required 35%.

Woollahra Local Environmental Plan 2014

17. The site is within the R2 Low Density Residential zone according to the WLEP, in which dwelling house development is permitted with consent, and where consistent with the following objectives of the zone:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

•  To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

•  To ensure development conserves and enhances tree canopy cover.

18. The site is not identified as an item of heritage significance, and is not located within a heritage conservation area. However, the site is within the vicinity of an item listed in Sch 5 of the WLEP for its heritage significance at a state level, known as Strickland House, and a number of local heritage items. I accept that the development as modified does not detract from the heritage significance of those heritage items located nearby, pursuant to cl 5.10 of the WLEP.

19. While the site is identified at cl 6.1(2) of the WLEP as being within an area of Class 5 acid sulfate soils, I accept that the works subject to the modification application are not likely to lower the water table below 1.0m AHD on any land within 500m of a Class 1, 2 and 3 land classifications, pursuant to cl 6.1 of the WLEP.

20. The proposal is for a greater extent of excavation than that proposed in the June Consent. A Preliminary Geotechnical Investigation prepared by Martens dated June 2024 includes logs from five boreholes and four dynamic cone penetrometer tests. I have considered the extent of additional earthworks and, on the basis of the agreed conditions of consent requiring detailed stormwater plans (Condition C.7), Soil and Water Management Plan (Condition C.5), and Geotechnical and Hydrogeological Design, Certification and Monitoring (Condition C.9), I conclude that those matters at cl 6.2 of the WLEP are adequately addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

22. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

23. The Stormwater Plans depict the collection and storage of roof water in rainwater tanks with a capacity of 6,000L, fitted with a first flush device and^, connected to Council’s drainage system. I am satisfied that the onsite retention of stormwater, combined with the silt arrestor pits and trash screens depicted on the Stormwater Plans, will result in a neutral or beneficial effect on water quality in the catchment. On the basis of the calculations set out in the letter prepared by SGC dated 19 June 2025, which show a reduction in discharge from the site in the post-development scenario, I am also satisfied that the proposal appropriately manages the flow of water into that catchment.

24. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP, and I am satisfied that there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and the development will result in no adverse impact on aquatic reserves, or in terms of erosion.

25. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply.

26. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

27. A BASIX Certificate, Cert No. A1754892_02 dated 2 June 2025, has been prepared to accompany the modification application, which shows that the proposed modifications to the approved development can satisfy the relevant water and energy targets and thermal performance, in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

28. The Court notes the terms of s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), that has the effect of saving the application of provisions of the Sustainable Buildings SEPP where a modification application was submitted after 1 October 2023, in respect of a consent submitted before 1 October 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. Chapter 4, s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) contains provisions regarding the remediation of contaminated land to ensure land which is contaminated is identified and appropriately remediated to be suitable for the proposed development. I am satisfied that this is a matter properly considered at the time of the June consent.

Conclusion

30. 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.

31. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

32. The Court notes that the Respondent, Woollahra Municipal Council, agrees to the Applicant amending Development Application DA411/2022/2 to rely on the amended plans and documents set out in Annexure A.

Orders

33. The Court orders that:

1. Leave is granted to the Applicant to amend the application to rely on the plans and documents set out in Annexure A.

2. The appeal is upheld.

3. Development Consent No. DA441/2022/1 is modified in the terms in Annexure B.

4. Development Consent No. DA441/2022/2 as modified by the Court is Annexure C.

T Horton

Commissioner of the Court

Annexure A (102 KB, pdf)

Annexure B (130 KB, pdf)

Annexure C (611 KB, pdf)

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Decision last updated: 25 June 2025