Annandale Street Developments Pty Limited ats the Annandale Street Developments Trust v Council of the Municipality of Woollahra

[2025] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation:

Annandale Street Developments Pty Limited ats The Annandale Street Developments Trust v Council of the Municipality of Woollahra [2025] NSWLEC 1122

Hearing dates:

Conciliation conference 28 January 2025: submissions 17, 18 February 2025 and 24 February 2025

Date of orders:

4 March 2025

Decision date:

04 March 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $18,000 within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application DA 216/2024/1, as amended, for the demolition of existing structures and construction of a residential flat building and associated site works at 7 Annandale Street, Darling Point, is determined by the grant of development consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: residential flat building in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 2.6, 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Housing) 2021, s 144

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Woollahra Local Environmental Plan 2014, cll 4.1A, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9, Sch 5

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Annandale Street Developments Pty Limited ats The Annandale Street Developments Trust (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/297156

Publication restriction:

Nil

Judgment

1. COMMISSIONER: An existing residential flat building stands on the eastern side of Annandale Steet in Darling Point. The Applicant in these proceedings seeks consent to demolish the existing building so as to construct a residential flat building comprising 3 apartments, basement parking and a rooftop terrace.

2. To this end, development application No DA 216/2024/1 (the DA) was lodged with the Council of the Municipality of Woollahra (the Council) on 20 June 2024 and was notified between 19 July-25 July 2024.

3. The DA was refused by the Woollahra Local Planning Panel on 5 December 2024, and the Applicant now appeals the refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act)

4. 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 28 January 2025. I presided at the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application, subject to an adjournment to prepare amended plans consistent with the in-principle agreement.

6. I adjourned the conciliation conference to allow the Applicant to prepare amended plans.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 February 2025. The agreement was later corrected on 18 February 2025, before a finally corrected form of agreement was filed 21 February 2025.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

9. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and 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.

10. 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’ 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.

11. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

12. The site is located in an area identified in the Woollahra Local Environmental Plan 2014 (WLEP) as a R3 Medium Density Residential zone, in which development of the purpose of a residential flat building is permitted with consent, where consistent with the following objectives:

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

•  To provide a variety of housing types within a medium density residential environment.

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

•  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.

The Minimum Lot Size standard is exceeded

13. As the Development Application is for a residential flat building in the R3 Medium Density Residential zone, it is subject to a minimum lot size requirement of 700m² (lot size standard), according to cl 4.1A of the WLEP. However, the proposal is for a lot of land that measures an area of 674.2m². As such, the Applicant relies on a written request prepared in accordance with cl 4.6 of the WLEP, authored by GSA Planning dated June 2024 (Lot Size Request).

14. I am satisfied that the proposal achieves the objectives of the lot size standard and the objectives of the R3 zone at [12], notwithstanding the non compliance with the relevant standard. The single objective of the lot size standard is to achieve planned residential density in certain zones consistent with the desired future character of the neighbourhood. I accept that the proposal is for the continuing use of the site as a residential flat building. The proposal complies with the floor space ratio standard at cl 4.4 of the WLEP and the majority of the controls under the Woollahra Development Control Plan 2015 (WDCP) that seek to regulate amenity such as solar access, acoustic and visual privacy, view sharing and the number of car and bicycle parking spaces. The proposal is also consistent with the built form in the area where immediate neighbours at Nos 3 and 9 Annandale Street, Darling Point also fail to comply with the minimum lot size requirement of 700m².

15. I note the Lot Size Request also cites the desired future character objectives of the Darling Point Precinct found at Part B1 of the WDCP with which it asserts consistency.

16. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the lot size standard. Firstly, there is a lack of opportunity for site consolidation given the irregular shape and size of the lots along the Annandale Street and the fact that the site is adjacent to residential flat buildings at Nos 3 and 9 Annandale Street. Secondly, the extent of non-compliance is minor and does not preclude the site’s ability to accommodate a residential flat building – which it evidently does currently. Thirdly, the proposal will provide an enhanced level of amenity for future residents through substantial compliance with environmental planning instruments. Finally, the proposal is consistent with its context given the existing residential flat buildings in the immediate vicinity that are likewise less than the minimum lot size standard.

17. For these reasons, I accept the reasons advanced in the written request to vary the lot size standard and I find it should be upheld.

The height standard is exceeded

18. The site is subject to a maximum building height of 10.5m, according to the relevant map at cl 4.3(2) of the WLEP. The Development Application, as amended, proposes a maximum height of 11.83m when measured from the highest point of the spa on the roof level to the existing ground level immediately below, and the Applicant relies on a written request prepared by GSA Planning dated February 2025 that seeks to justify the contravention of the height standard (the Height Request).

19. However, parties have agreed to a further reduction in height of 200mm by an agreed condition of consent, at Condition D1 that is imposed to ensure equitable view sharing.

20. I am satisfied that the proposal achieves the objectives of the height standard at cl 4.3 of the WLEP, as well as the objectives of the R3 zone, notwithstanding the non compliance with the height standard for the reasons set out in the written request in respect of height.

21. The objectives of the height standard are as follows:

(a)  to establish building heights that are consistent with the desired future character of the neighbourhood,

(b)  to establish a transition in scale between zones to protect local amenity,

(c)  to minimise the loss of solar access to existing buildings and open space,

(d)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e)  to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

22. I note the Council is satisfied that the proposal, when reduced by a further 200mm by condition of consent, will offer a compatible presentation to the surrounding built form, streetscape, surrounding development and desired future character, and that the building height is consistent with surrounding built form and context.

23. The Height Request sets out a rationale for consistency with the desired future character of the Darling Point, found at Part B1 of the WDCP, with which the Council takes no issue.

24. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard, which is I accept is substantially related to the site topography and consistency with the prevailing development in its context. Firstly, I accept that existing excavation levels for the existing garages has resulted in the existing ground level towards the frontage of the site which contributes to the non compliance of the leading edge of the front roof of the uppermost level. Secondly, I accept the variation to the building height is minimal and is confined to the front portion of the non-trafficable roof area, and that part of the roof terrace, including the balustrade and pool. I note the non-compliance will be further reduced by 200mm by the agreed condition of consent, while the rear portion of the roof level is below the height standard. Thirdly, because the breach is minor in nature, it will not be readily visible from the public domain of Annandale Street.

25. I also accept that the position of those elements on the roof that contribute to the non compliance are substantially located to the periphery of the view shed enjoyed by No 1 Yarranabbe Road behind the subject site, that will otherwise retain its views of water, and the iconic urban landscape beyond.

26. For these reasons, I accept the reasons advanced in the written request to vary the height standard and I find it should be upheld.

Other jurisdictional pre requisites of the WLEP

27. The site is not identified for its heritage significance in Sch 5 of the WLEP, and is not located within a heritage conservation area. However, the site is in the vicinity of a number of heritage items. A Demolition Report prepared by Wier Phillips Heritage & Planning dated 7 June 2024 accompanies the DA as amended and concludes that the works will have no detrimental impacts on the heritage significance of the nearby heritage items.

28. That said, it is also acknowledged that the proposal will have an impact on the adjoining heritage item at 1 Yarranabbe Road, Darling Point because of obstruction of views to and from the heritage item. However, the parties agree that the impact is ameliorated and made acceptable by a further reduction in height of 200mm such that the adverse impact is not significant on the view from 1 Yarranabbe Road or from the Darling Point Heritage Conservation Area.

29. Additionally, as the site is identified as having Potential Aboriginal Heritage Sensitivity, an Aboriginal Heritage Assessment Report was prepared by Virtus Heritage dated 11 June 2024. It recommends procedures that are contained in agreed conditions of consent. As such, I consider the matters at cl 5.10 of the WLEP to be adequately addressed.

30. The site is located on land mapped as ‘class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the WLEP. The Applicant relies on a Site Hydrogeology Report prepared by Morrow dated 8 November 2024 that states acid sulfate soils are not expected to be encountered, and the Hydrogeological Letter also authored by Morrow dated 1 October 2024 concludes the soil profile and age are not consistent with acid sulfate soils and that the excavation proposed should not affect the natural level of the water table.

31. On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the WLEP and conclude that the earthworks proposed will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:

1. The following reports prepared by Morrow Geotechnics:

1. Geotechnical Investigation Report dated 8 November 2024

2. Site Hydrogeology Report dated 8 November 2024

3. Dewatering Management Plan dated 23 January 2025.

2. The Preliminary and Detailed Site Contamination Investigation Report prepared by Geo-Environmental dated 9 April 2024, and Remediation Action Plan prepared by Geo-Environmental dated 31 May 2024.

3. Aboriginal Heritage Assessment Report prepared by Virtus Heritage dated 11 June 2024.

32. On the basis of the tree canopy coverage calculations shown on the Landscape Plans prepared by Wyer & Co dated 20 February 2025, I accept that the development incorporates planning and design measures to enable the retention and planting of trees to minimise the urban heat island effect, and will avoid, minimise or mitigate adverse impacts on the existing tree canopy by augmenting the existing tree canopy and other landscaping with proposed deep soil landscaping, consistent with cl 6.9 of the WLEP.

The design of residential apartment development

33. As the proposed development comprises 3 dwellings, s 144(3)(c) precludes the application of State Environmental Planning Policy (Housing) 2021 to the proposal.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

34. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an Arboricultural Impact Assessment prepared by Martin Peacock Tree Care dated 13 June 2024 that identifies nine trees on the site for retention, and 1 for retention, with pruning. The proposal seeks consent for the removal of those nine trees by reference to the Landscape Plans at [32], and the agreed conditions of consent that enumerate the trees to which consent is directed, and s 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

35. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map.

36. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the 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.

37. On the basis of the consultant advice note prepared by IGS dated 18 February 2025 (IGS Advice), and the filtration devices depicted on the Stormwater Plans prepared by IGS, I am satisfied that there is appropriate treatment and control of stormwater run-off proposed. Stormwater run-off generated on the site will be directed to a subsurface rainwater tank and storm filter chamber, which will then connect to the public drainage system to the west of the site. For these reasons, the effect of the proposal on the quality of water entering Sydney Harbour is as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised.

38. It is also relevant to record here that ISG Advice confirms that the agreed condition of consent at [19] does not compromise the operation of the stormwater concept plan, nor the water quality treatment or water flow devices proposed.

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

40. 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 (Resilience and Hazards) 2021

41. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the investigations undertaken and recommendations contained in those documents at [31(2)], I am satisfied the site can be made suitable, following remediation, for the purpose for which development is proposed to be carried out.

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

42. The application is accompanied by a BASIX certificate (Cert No 1749580M_05 prepared by IGS dated 5 February 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

43. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

44. 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.

45. 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.

46. The Court notes that:

1. Woollahra Municipal Council as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA 216/2024 to include the documents set out in Annexure B.

2. The Applicant filed those documents in Annexure B with the Court on 28 February 2025.

Orders

47. The Court orders that:

1. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $18,000 within 28 days of these orders.

1. The appeal is upheld.

2. Development Application DA 216/2024/1, as amended, for the demolition of existing structures and construction of a residential flat building and associated site works at 7 Annandale Street, Darling Point, is determined by the grant of development consent, subject to the conditions at Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 04 March 2025