Britt v Woollahra Municipal Council

[2025] NSWLEC 1633

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Britt v Woollahra Municipal Council [2025] NSWLEC 1633

Hearing dates:

24 and 25 July 2025

Date of orders:

02 September 2025

Decision date:

02 September 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA5/2023/1 is modified in the terms in Annexure A.

(3) Development Consent No. DA5/2023/1 as modified by the Court is Annexure B.

(4) All Exhibits are returned except for Exhibits A and C.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – consideration of amended General Terms of Approval from Heritage NSW – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Pt 4, Div 4.8, ss 1.5, 4.13, 4.46, 4.47, 4.55, 4.56, 8.9, 8.15, Sch 1, Div 2, cl 7

Land and Environment Court Act 1979 (NSW), ss 34AA, 39

Heritage Act 1997 (NSW), ss 57, 58, 63, 65A

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy No.71 – Coastal Protection 2002

State Environmental Planning Policy No 55 (Remediation of Land) 1998

State Environmental Planning Policy (Resilience and Hazards) 2021

Woollahra Local Environmental Plan 2014, cll 1.2, 2.2, 2.3, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2

Cases Cited:

Griffin vs Woollahra Municipal Council [2023] NSWLEC 1656

Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177

Texts Cited:

Woollahra Community Participation Plan 2023

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Paul Britt (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Hall and Wilcox (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

2025/14432

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of Modification Application No. 5/2023/2 (the Modification Application) by the Woollahra Municipal Council to modify Development Consent No.5/2023/1 for the proposed development of land at 14 Rosemont Avenue, Woollahra, 2025 (legally known as Lot 2 DP 554201) (the site).

History of the Development Consent

2. Development Application No. 5/2023/1 for alterations and additions to the existing dwelling, including excavation for a new basement parking area with tennis court above, two swimming pools (indoor and outdoor), tree removal and associated landscaping was approved by the Land and Environment Court (Court) on 7 November 2023 (Griffin vs Woollahra Municipal Council [2023] NSWLEC 1656) (Griffin) (the Original Consent).

The Modification Application

3. The proposed modification is described in the Respondent’s Statement of Facts and Contentions dated 17 February 2025 (the SOFAC) as the “correction of error relating to inconsistencies between the Court approved architectural plans and the wording of the conditions of consent relating to trees”.

4. The Applicant advised that:

1. The Modification Application was lodged by the Applicant after the Applicant became aware that there was an inconsistency between the plans and conditions of consent approved by the Original Consent. The inconsistency was that the landscape plans, the subject of the Original Consent (Original Landscape Plans), and the conditions for the Original Consent (Original Conditions) showed various trees were to be retained which the architectural plans, the subject of the Original Consent (Original Architectural Plans), showed a courtyard was to be constructed where those trees were to be retained (Subject Trees); and

2. The development was carried out in accordance with the Original Architectural Plans and the Subject Trees were removed. The Modification Application is to provide replacement planting and amendments to the courtyard in the area of the Subject Trees.

Evolution of the Appeal

5. The Modification Application was originally lodged by the Applicant under s 4.55(1A) of the EPA Act. On 6 September 2024, the Respondent refused the Modification Application. On 13 January 2025, the Applicant filed a Class 1 Application against the Respondent’s refusal of the Modification Application.

6. On 9 April 2025, by consent, the Court granted leave for the Applicant’s Notice of Motion filed on 1 April 2025 to rely on the plans and documents identified in the Schedule to the Motion (Amended Application), including the Amended Class 1 Modification Application Form (Amended MA Form).

7. The Amended MA Form was amended at the ‘Type of modification requested’ section on page 2 to read “S4.56 - Modification to a development consent granted by the NSW Land and Environment Court, where the development will remain substantially the same as the development that was originally approved”. This amendment was made to facilitate the Amended Application being brought pursuant to s 4.56 instead of under s 4.55(1) of the EP&A Act.

8. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.56 of the EPA Act.

9. The Respondent referred the amended Modification Application to the Heritage NSW on 10 June 2025 to obtain amended General Terms of Approval (amended GTA’s) in respect of doing or carrying out of an act, matter or thing referred to in s 57(1) of the Heritage Act 1977 (NSW) (the Heritage Act), pursuant to s 4.46 of the EPA Act.

10. A Joint Expert Report (Landscaping) was filed with the Court on 1 July 2025. A Joint Expert Report (Planning) (the Joint Report) was filed with the Court on 2 July 2025.

11. Amended General Terms of Approval had not been received from Heritage NSW before the on-site view for this matter commenced.

12. With the agreement of the Respondent on 24 July 2025, the Applicant was granted leave by the Court pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to further amend the Modification Application in accordance with the plans contained in Exhibit C tendered to the Court

Related Proceedings

13. Class 4 proceedings have been brought by Mr and Mrs Cottle of the adjoining property at 22 Rosemont Avenue Woollahra (the adjoining property) against the owner of the site (Land and Environment Court Proceeding No. 2025/24228 refers), seeking to remedy the breach by “restoring the privacy previously provided by the removed camelia sasanqua trees [at the boundary of the two sites] in a manner sympathetic with existing structures on 22 Rosemont”.

14. The removed camelia sasanqua trees are also described as “the Subject Trees” by the Applicant (refer to para [4] above).

15. These proceedings have been adjourned pending the decision in this matter before the Court.

Section 34AA(2) conciliation conference

16. The Court arranged a conciliation conference for the Modification Application under subs 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 24 July 2025. I presided over the conciliation conference, which commenced on site. Ms Cottle (the Objector), who resides at the adjoining property at 22 Rosemont Avenue (the Objector’s property), made submissions at the on-site view, which was primarily conducted in the back yard of the Objector’s property. Legal representative and experts for the Applicant, Respondent and the Objector attended the on-site view. The Objector was represented at the on-site view by Mr A Pickles (Barrister) and Mr M Tanko (Landscape Architect) made further submissions on behalf of the Objector.

17. The Objector had expressed the view previously in her written submission that the Modification Application should not be approved for the following reasons:

1. the Respondent has no power to modify Condition A.7 of the Original Consent;

2. the amended Modification Application conflicts with the Section 60 Approval by the Heritage Council;

3. the reasons given for modification are not credible;

4. the Applicant should not benefit from its unlawful works;

5. it is not substantially the same development for which the Original Consent was granted;

6. the Amended Application goes against the reasons given for the grant of the consent that is sought to be modified;

7. there are adverse impacts on privacy of the private open space and upper-level bedrooms of the Objector’s property; and

8. the Modification Application should be altered as suggested by the Objector.

18. There was a detailed discussion on-site between the experts for the Applicant, Respondent and the Objector in relation to the further amended Modification Application, which was of assistance to the Court.

Further Amended Modification Application

19. At the conciliation conference, the Applicant advised that a further amended Modification Application had been prepared, seeking to amend the Original Consent as follows:

1. Amend the Original Landscape Plans and the Original Architectural Plans to make the minor design changes to provide clarity for the landscaping of the site going forward and to address the Objector’s subsequent privacy concerns in her submission;

2. Amend the Original Conditions to reflect the Amended Plans and make consistent all documents the subject of the Original Consent, including as amended by the further amended Modification Application.

20. The parties agree and submit that the further amended Modification Application does not seek retrospective development consent for the removal of the Subject Trees as reflected in the proposed modified conditions of development consent. This is discussed further at paras [54] – [56] below.

21. The parties advise that the further amended Modification Application includes minor design changes in the Amended Architectural Plans which can be summarised as follows:

1. Deep soil planter added along eastern boundary between Trees 9 and 45;

2. Screen planting provided in new deep soil planter;

3. Cyclone fence added to boundary between Trees 9 and 45 to facilitate climbing plants and provide privacy between the Site and the Objector’s Property;

4. Courtyard stair access relocated (as a result of the above changes);

5. Trees previously approved as being transplanted now indicated as being removed; and

6. Minor associated amendments to reflect the above changes.

22. The parties advise that the further amended Modification Application includes the following amendments in the Amended Landscape Plans:

1. LA01 - Addition of tree canopy and hedge planting, gate removed, courtyard relocated, existing shrubs removed/relocated, part-removal and restoration of Tree 47 retaining wall, revised location of access stairs and path moved further out;

2. LA02 - Tree retentions and removals updated to reflect new design;

3. LA03 - Addition of tree canopy replenishment planting, addition of some trees and plants, reduction in number of some specific plants and pot size, addition of hedge and screening species, and removal of some plants;

4. LA04, LA05 and LA06 - Minor administrative changes;

5. LA07 - Addition of tree canopy replenishment trees and cabana planting revised; and

6. LA08 - Addition of note regarding Ficus hilli “Flash” pot size and planting under Arborist supervision, addition of section through boundary and staff amenities and paving removed.

23. The further amended Modification Application proposes the installation of cyclone fencing and screen planting in place of the removed Subject Trees. The parties advise that the design changes in the Amended Architectural and Landscape Plans work to address and improve any perceived privacy impact on the Objector’s property as raised in the submission made.

24. As noted in para [12] above, with the agreement of the Respondent on 24 July 2025 the Applicant was granted leave by the Court to further amend the Modification Application in accordance with the plans contained in Exhibit C tendered to the Court. The further amended Modification Application formed the basis for a draft s 34 Agreement between the Applicant and the Respondent, which was not subsequently made (refer to paras [33] – [35] below).

The Site and its Context

25. The Respondent provided the following information about the site in the SOFAC:

1. The site is identified as Lot 2 DP 554201 has a total area of 3,640 m2;

2. The site is an irregular shaped allotment with frontage to Rosemont Avenue along the south-eastern boundary and also a frontage to Quambi Place along a section of the northern boundary;

3. Vehicular access to the site is currently provided via a shared driveway (reciprocal right of way) which extends from Rosemont Avenue along the southern and western boundaries;

4. The site is an elevated allotment when compared to adjoining properties and rises approximately 2.5m from the south east (RL 66.8) towards the north west (RL 69.3) and then falls back down to street level (RL65.9) at Quambi Place to the north. The majority of the site where the house is located is relatively flat; and

5. The site is occupied by a substantial freestanding two-storey Victorian Georgian style dwelling house (currently being renovated) and expansive garden area (currently under construction).

26. The site is zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014 (the LEP). The site is located within the Woollahra Heritage Conservation Area and is listed as State Heritage Item SHR No. 00294 and Local Heritage Item 1603. The site is in the vicinity of a number of individually listed items of local heritage significance.

Heritage NSW – General Terms of Approval

27. In Griffin, it is noted in relation to the approved DA the following jurisdictional prerequisites applied arising from the heritage significance of the site:

1. Owing to the status of the dwelling, the proposed alterations and additions are integrated development for the purpose of Div 4.8 of Pt 4 of the EPA Act as approval is required under the Heritage Act;

2. Section 57 of the Heritage Act applies, among other things, to an item listed on the State Heritage Register and describes the circumstances where the consent authority must give regard to Subdivision 1 Applications generally as prescribed by s 58 of the Heritage Act. Consideration must be given where the proposal seeks to do or carry out an act, matter or thing referred to in s 57(1);

3. Pursuant to s 63 of the Heritage Act, the determination of an application in relation to integrated development is subject to Pt 4 of the EPA Act;

4. Section 4.47 of the EPA Act requires general terms of approval be obtained prior to development consent being granted to carry out the development. General terms of approval (GTAs) have been obtained from the Heritage Council in relation to the original DA (but not for the amended development application agreed through the s 34 process);

5. Section 8.14(4) of the EPA Act describes the powers of the Court on appeals which relate to integrated development. Under s 8.14(4)(c), the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the GTAs of the relevant approval body;

6. The parties have submitted that the amended development consent does not impact the general application of the GTAs and that all heritage considerations have been maintained and are subject to the Conditions of Consent;

7. The development consent, as amended, does not require further approval from the Heritage Council pursuant to the Court’s power under s 8.14 and, where issues of a heritage nature have remained consistent with the GTAs for the purposes of s 4.47 of the EPA Act; and

8. The Court has the power to determine the appeal pursuant to s 8.14 of the EPA Act (and pursuant to s 39(6) of the LEC Act, which also prescribes the powers of the Court on appeal).

28. The same jurisdictional prerequisites apply to the further amended Modification Application before the Court.

29. Advice from the Heritage Council dated 23 July 2025 on the amended Modification Application (not the further amended Modification Application) (the amended GTAs) was tabled by the Respondent at the hearing on 25 July 2025. The amended GTAs require a development outcome that is not in accordance with either the amended Modification Application or the further amended Modification Application.

30. The Heritage Council stated in its letter dated 23 July 2025 that the following information is to be submitted with the application under s 65A of the Heritage Act for approval by the Heritage Council (or delegate) prior to the work commencing:

1. Amended landscape plan indicating the following:

1. Increased deep soil planter dimensions between Tree 9 and 45 to minimum 2.5m width and 1.6m depth;

2. Proposed planting of Ficus microcarpa hillii ‘Flash” are to be substituted with same litre size specimens of Eleaocarpus eumundii and Syzigium austrate ‘Neighbours be gone’;

3. Deletion of steps and stepping stones associated with deep soil planter; and

4. Proposed cyclone fence fixed to top of boundary wall with Star Jasmine to be substituted with palisade fence with angled struts.

2. The proposed opening between the rumpus and gym is not approved;

3. A mature specimen of Brachychiton acerifolius shall replace the existing Tree 14 in a similar location; and

4. The proposed works outlined in the Schedule of Conservation works shall be implemented on site prior to the issue of an occupation certificate.

31. The reason stated by Heritage NSW in its letter dated 23 July 2025 for the requirements outlined in para [30(1)] above is “the assessment and management of these details is considered essential in order to obtain a good heritage outcome”.

32. The reason stated by Heritage NSW in its letter dated 23 July 2025 for the requirements outlined in para [30(2)] above is “to mitigate impacts to significant fabric”.

Section 34 Agreement not made

33. The original contentions in the SOFAC were substantially resolved by the parties prior to the s 34 conciliation conference through amendments to the Modification Application, resulting ultimately in the further amended Modification Application. Remaining minor contentions between the parties were resolved at the conciliation conference.

34. In particular, the parties’ landscaping experts in their Joint Expert Report filed 1 July 2025 with the Court agreed that the Amended Landscape Plans resolve the Respondent’s landscaping issues outlined at Contention 4 of the SOFAC.

35. However, as Heritage NSW required changes to the proposed development in its amended GTAs which are inconsistent with the further amended Modification Application, the Respondent advised that it could not enter into a s 34 agreement with the Applicant which relied on the further amended Modification Application.

The Hearing

36. The s 34 conciliation conference was terminated and the matter proceeded to a hearing on 25 July 2025.

37. The Respondent made no submissions to the Court and did not call expert evidence at the hearing or cross-examine any witnesses called by the Applicant.

38. The Respondent advised that Condition A6 as submitted by the Respondent incorporates the most recent Heritage NSW GTAs that relate to the further amended Modification Application.

Expert Evidence

39. The Court was assisted by expert evidence on behalf of the Applicant and Respondent in the following disciplines:

1. Town Planning:

1. Philip North for the Applicant; and

2. Brett McIntyre for the Respondent;

2. Landscaping:

1. Gorka Ojeda (Tree Management Officer) Arboricultural expert on behalf of the Respondent; and

2. James Heron (Taylor Brammer Landscape Architects) Landscape expert on behalf of the Applicant.

3. Heritage:

1. James Phillips for the Applicant.

40. The experts for the Applicant, Respondent and Objector attended the on-site view. The landscape and heritage experts for the Applicant attended the hearing.

41. Mr Phillips participated in the joint heritage report on behalf of the Applicant in support of the original DA approved in Griffin. Mr Phillips was called by the Applicant to give evidence at the hearing on the conditions proposed in the amended GTAs.

40. Mr Phillips referred to the summary Statement of Significance prepared by Weir Phillip Heritage and Planning for the site (Statement of Significance) (submitted by the Applicant in support of the DA for the Original Consent and tendered by the Respondent at Exhibit A). The relevant passage from the Statement of Significance is as follows:

1. “While its 1860’s origins remain clear, the dwelling [at 14 Rosemont Avenue] has been added to and altered over time so that it demonstrates mixed integrity. Although the grounds have been subdivided on a number of occasions, the dwelling retains a garden setting that includes mature plantings”.

43. In response to questions by Mr Eastman about the amended GTA’s, Mr Phillips stated his view that:

1. There is no heritage significance relating to the proposed fencing and landscaping at the boundary between the site and the Objector’s property;

2. The Statement of Significance does not contain any reference to planting type, and that “plantings vary from time to time due to fashion”;

3. Cyclone fencing is historically appropriate for the site and provides an opportunity for climbing plants;

4. Palisade fencing with angled slats as proposed by the Objector and included in the amended GTAs is more appropriate in a modern setting (such as providing privacy between residential flat buildings); and

5. The requirements in the amended GTAs do not assist in obtaining a heritage outcome for the proposed development.

44. Ms Bullmore for the Respondent did not take issue with any of the evidence presented by Mr Phillips.

Consideration

45. The effective replacement of screening trees which had been identified for retention in the Original Consent, at the boundary between the site and the Objector’s site, is the crucial outcome that is identified by both parties and the Objector to be achieved.

46. The further amended Modification Application includes the installation of cyclone fencing (to be covered with climbing vegetation) and replacement screening vegetation (Ficu hilli “Flash”) to be provided at the boundary with the Objector’s site (but wholly contained within the site). The landscape experts for the Applicant and Respondent in their Joint Report dated 26 June 2025 referred to the amended landscape plans and stated that:

1. The revised landscaping now proposes retention of Trees 9 and 45 previously approved for removal, which provides compensatory canopy for the already removed Trees 44 and 39 (same species);

2. The Replenishment Planting Plan includes planting of thirty new trees and two hedges;

3. The overall mature tree canopy proposed is comparable to the approved scheme in the Original Consent and is supported by Council’s Landscape Expert in terms of number of trees, species and canopy coverage; and

4. The revised landscape package proposes a hedge of Ficu hilli “Flash” to a mature height of 8m between Trees 9 & 45, in the area where the removal of Camellias (trees 47 to 55) caused loss of amenity and privacy issues for the Objector.

47. The Applicant submits that the design changes in the further amended Modification Application work to address and improve any perceived privacy impacts on the Objector’s site as raised by the Objector.

48. The Objector is seeking the use of a different screening species (“Neighbours Be Gone”), the removal of Trees 9 and 45, and the construction of a palisade fence with blades on a retaining wall within the Objector’s property. Implications of using the different screening species include a requirement for a 2.5m wide planter box on the site (instead of a 1.5m wide planter box for Ficu hilli “Flash”), which would affect the courtyard dimensions and the stepping stone pathway access to the staff quarters already approved in the Original Consent and under construction.

49. At the on-site view on 24 July 2025, after hearing from the experts for the Applicant, Respondent and Objector, I formed the view that the changes proposed in the further amended Modification Application do effectively address the concerns raised by the Respondent in its SOFAC and the concerns raised by the Objector.

50. Having considered the evidence of the landscape experts for the Applicant and the Respondent, I am satisfied that that proposed planting of Ficu hilli “Flash” and the retention of Trees 9 and 45 at the boundary between the site and the Objector’s site, along with the construction of a cyclone fence to support the growth of the proposed climbing plants, will provide a similar screening and landscape treatment to that in the Original Consent.

51. I note that the use of Ficu hilli “Flash” rather than “Neighbours Be Gone” as a screening hedge will allow for the retention of a usable courtyard area for the proposed (and approved) staff quarters on the site, maintaining the amenity for the staff while not restricting the planting of screening vegetation.

52. In relation to the palisade fence with angled blades sought by the Objector, this fence would be wholly located within the Objector’s site and could not be approved as part of this modification application. In addition, after considering the evidence of the landscape experts I do not consider that this palisade fence would be required in addition to the proposed vegetation to contribute to the screening of the site from the Objector’s site.

53. Finally, I agree with Mr Phillip’s assessment that the requirements in the amended GTAs do not contribute to the heritage outcome for the proposed development. I am satisfied that the proposed combination of screening hedge and cyclone fence with climbing plants at the boundary between the site and the Objector’s site is more consistent with the current boundary treatments both existing and previously approved in the Original Consent for the site, and is an element that does not detract from the heritage significance of the site.

Jurisdictional Prerequisites

Consent can be modified

54. The Respondent advised the Court that it is satisfied with the Applicant making its further amended Modification Application pursuant to s 4.56 of the EPA Act. As noted above at para [6], on 9 April 2025 the Court granted leave for the Applicant to do this by way of the Applicant’s Motion.

55. The parties submitted that Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 sets out the current position regarding the power to make a modification application under s 4.56 of the EPA Act. At para [11] in this judgment, it is stated that the power to modify a development only arises where there is some change proposed to the development for which consent was granted. The change must be affected to the “development” itself, within the scope of “development” defined by s 1.5 of the EPA Act to include matters such as:

1. the use of land;

2. the subdivision of land;

3. the erection of a building;

4. the carrying out of a work;

5. the demolition of a building or work; and

6. any other act, matter or thing that may be controlled by an environmental planning instrument.

56. The parties advise, and I agree, that:

1. The further amended Modification Application does not seek retrospective approval for any works. Rather, it proposes minor landscaping works by way of tree planting and cyclone fencing to the adjoining Objector’s Property, but not on the property boundary;

2. While the Original Landscape Plans required retention of the Subject Trees, the Original Architectural Plans did not require retention of these trees. The further amended Modification Application seeks to provide a landscaping plan for future implementation and amends the Original Landscape Plans, Original Architectural Plans and Original Conditions such that all of these documents reflect the same development; and

3. The further amended Modification Application has been referred to Heritage NSW. The Respondent has therefore satisfied the legislative requirements to notify the Heritage Council under s 4.13(1) of the EPA Act. The Applicant has prepared a revised Statement of Environmental Effects which was prepared for and provided to Heritage NSW.

Substantially the Same Development

57. The parties advised the Court that they agree that the proposed modifications the subject of the further amended Modification Application constitute substantially the same development as the development for which the Original Consent was granted for the purpose of section 4.56(1)(a) of the EPA Act. The changes to the development that was approved by the Original Consent, which are to be made by way of the Amended Plans, are outlined at paras [21] – [23] above.

58. The parties further advised that the removal of the Subject Trees is not a basis to determine that the further amended Modification Application does not pertain to substantially the same development as the Original Consent.

59. The Objector expressed the view that the proposed modification is not substantially the same development for which the Original Consent was granted.

60. I agree with the parties’ submission that the further amended Modification Application is for substantially the same development. The further amended Modification Application will correct inconsistencies in the architectural and landscape plans and will reinstate screening between the properties which is in accordance with the intent of the original approval.

Owner’s consent

61. Landowner’s consent was provided by the Applicant in the lodgement of the Modification Application.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

62. The amended Modification Application was advertised by the Respondent pursuant to the EPA Act, the Woollahra Development Control Plan 2015 (the DCP) and the Woollahra Community Participation Plan 2023 between 16 April 2025 and 16 May 2025. The parties advise that the Court can be satisfied that the amended Modification Application has been notified as required by s 4.56(1)(b) of the EPA Act.

63. The Respondent received one submission from Kimberly Cottle (the Objector) dated 16 May 2025 in response to the notification of the amended Modification Application. The Objector attended the on-site view.

Conditions of Consent

64. Both the Applicant and the Respondent provided draft Conditions of Consent at the conclusion of the hearing.

65. The version of Condition 2(a)(to be included under Condition A6 – General terms of Approval – Heritage Act 1977 (Heritage NSW, Department of Planning and Environment)) as proposed by the Applicant remains unchanged from the Original Consent and is as follows:

“The following information is to be submitted with the s 60 application for approval by the Heritage Council of NSW (or delegate):

a. A Transplant Methodology that clearly articulates whether there is sufficient area (root ball area and canopy area) allowed where the plants are proposed to be relocated to ensure a successful transplant. The transplant methodology shall also include:

Schedule of plants to be transplanted

Preparation (root and canopy pruning)

Removal and relocation of trees to be transplanted (size and depth of root balls are to be specified)

Establishment of transplanted specimens

Plant care during all stages of transplant process is to be detailed to ensure a successful transplant.”

66. The Respondent’s proposed version of the same condition (to be included under Condition A6 – General terms of Approval – Heritage Act 1977 (Heritage NSW, Department of Planning and Environment)) contains wording which would impose the amended GTAs as follows:

2. The following information is to be submitted with the s65A application for approval by the Heritage Council of NSW (or delegate):

a. A Transplant Methodology that clearly articulates whether there is sufficient area (root ball area and canopy area) allowed where the plants are proposed to be relocated to ensure a successful transplant. The transplant methodology shall also include:

Schedule of plants to be transplanted

Preparation (root and canopy pruning)

Removal and relocation of trees to be transplanted (size and depth of root balls are to be specified)

Establishment of transplanted specimens

Plant care during all stages of transplant process is to be detailed to ensure a successful transplant.

b. The applicant shall nominate an experienced Tree Transplant expert to supervise all stages of transplanting and ensure that the transplanting is undertaken in a timely manner.

c. Information shall be provided on groundwater management for the whole site.

d. Amended Landscape Plan indicating the following

i. Increased deep soil planter dimensions between Tree 9 and 45 to minimum 2.5m width and 1.6m depth.

ii. Proposed planting of Ficus microcarpa hillii ‘Flash’ are to be substituted with same litre size specimens of Eleaocarpus eumundii and Syzigium australe ‘Neighbours be gone’.

iii. Deletion of steps and stepping stones associated with deep soil planter.

iv. Proposed cyclone fence fixed to top of boundary wall with Star Jasmine to be substituted with palisade fence with angled slats.

67. I agree that Condition 2(a) as drafted by the Applicant should be imposed as this version retains the wording of the Original Consent condition and allows for the implementation of the landscaping and boundary treatments in the further amended Modification Application.

State Environmental Planning Policies

68. The Respondent advised in its SOFAC that a number of other State Environmental Planning Policies apply to the site, as follows:

1. State Environmental Planning Policy No.71 – Coastal Protection 2002;

2. State Environmental Planning Policy No.55 – Remediation of Land 1998;

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021; and

4. State Environmental Planning Policy (Resilience and Hazards) 2021.

69. The Original Consent has been previously assessed as complying with the requirements of these policies. No issues were raised by the Respondent in its SOFAC in relation to any of these policies.

WoollahraLocal Environmental Plan 2014

70. The LEP applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned R3 – Medium Density Residential pursuant to cl 2.2 of the LEP; and

2. The proposed development is for the purpose of a dwelling house, which is permissible with consent within the R3 Zone.

71. Clause 2.3(2) of the LEP requires the Court to have regard to the Zone objectives when determining the further amended Modification Application. I am satisfied that the proposed development is consistent with the zone objectives.

72. Clause 1.2 of the LEP outlines the aims of the LEP including the need for the protection and enhancement of amenities and the natural environment and ensuring that the development achieves the desired future character of the area. I am satisfied that that these are achieved by the further amended Modification Application as there is no substantial design changes proposed to the development that was approved in the Original Consent.

73. The proposed development does not contravene any of the following development standards in the LEP:

1. Clause 4.3 – Height of Buildings;

2. Clause 4.4 – Floor Space Ratio;

3. Clause 5.21 – Flood Planning;

4. Clause 6.1 – Acid Sulphate Soils; and

5. Clause 6.2 – Earthworks.

74. Clause 5.10 of the LEP relates to heritage conservation. This clause applies to the site as the dwelling is of state significance and is a local contributory item to the Woollahra heritage conservation area. The objectives in the LEP in relation to heritage conservation are as follows:

(a) to conserve the environmental heritage of Woollahra,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

75. The Original Consent is supported by a Heritage Impact Statement dated December 2022 prepared by Weir Phillips Heritage and Planning (the HIS). The HIS concludes that the proposed development is consistent with the objectives of cl 5.10 of the LEP and does not adversely affect the Woollahra heritage conservation area or the heritage items within its vicinity.

Conclusion

76. Having considered the submissions made by the Objector and the parties and their experts at the on-site view, the material presented by the Landscape Experts in their Joint Report dated 26 June 2025, the verbal submissions made by the Applicant’s heritage expert at the hearing, and the final submissions made by both parties, I have reached the conclusion that the further amended Modification Application should be approved.

77. I am satisfied that:

1. the Applicant’s further amended Modification Application can be approved having regard to the matters in s 4.56 of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.56 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

78. For the above reasons the appeal is upheld.

Orders

79. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. DA5/2023/1 is modified in the terms in Annexure A.

3. Development Consent No. DA5/2023/1 as modified by the Court is Annexure B.

4. All exhibits are returned except for Exhibits A and C.

G Kullen

Acting Commissioner of the Court

Annexure A (352 KB, pdf)

Annexure B (996 KB, pdf)

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Amendments

02 September 2025 - Case File No amended

Decision last updated: 02 September 2025