Caradonna Capital Pty Ltd v Woollahra Municipal Council

[2025] NSWLEC 1759

Land and Environment Court

New South Wales

Medium Neutral Citation:

Caradonna Capital Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1759

Hearing dates:

Conciliation conference held 28 July, 21 August and 24 September 2025

Date of orders:

21 October 2025

Decision date:

21 October 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA507/2024 and rely upon the amended plans and documents referred to in Condition A.3 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $20,000 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA507/2024 (as amended) for the demolition of existing buildings and construction of a new six-storey shop top housing development with basement parking at 8-10 Cross Street, Double Bay, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop top housing development – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 29, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Housing) 2021 Ch 4, s 147, Sch 9

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

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

Woollahra Local Environmental Plan 2014, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2

Texts Cited:

NSW Department of Planning, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

Caradonna Capital Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

2025/108455

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Caradonna Capital Pty Ltd (the Applicant), against the deemed refusal of Development Application DA507/2024 (the DA) by Woollahra Municipal Council (the Respondent).

2. At the date of its lodgement on 10 January 2025, the DA sought consent for the demolition of existing buildings and construction of a new six-storey shop top housing development with basement parking at 8-10 Cross Street, Double Bay (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 28 July, 21 August and 24 September 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of the proposed exceedance of the floor space ratio (FSR) and height of building development standards, and associated impacts of building form, bulk and scale upon the character and desired future character of the Double Bay centre, inadequate upper level setbacks, inadequate presentation to the proposed through site link, inadequate amenity for future residents, and concerns for cross viewing and privacy impacts for neighbouring properties, amongst other contentions.

6. Agreed, design amendments have now been made to improve the proposed building’s relationship to the site and its context. Changes have been made to increase the extent of building articulation across Levels 1 to 3 resulting in an improved interface with the through site link, increased upper level setbacks at the rear of the site along Knox Lane at Levels 4 and 5, design amendments to reduce the bulk and visual mass of the proposal more generally and particularly the alignment of the building facades as they present to the site’s primary street frontages at Cross Street and Knox Lane. Other issues such as the amenity provided to dwellings at Levels 4 and 5 have been improved. Additionally, cross viewing and visual privacy concerns have been resolved.

7. The Applicant has provided additional information addressing acoustic impacts, owners consent and clarification of the amended FSR and building height exceedances.

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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application and amended DA accompanying this matter.

11. The DA was publicly notified in accordance with the Respondent’s Community Participation Plan between 29 January and 28 February 2025. A total of three submissions were received by the Respondent raising concerns, including in summary:

1. Incompatibility with the existing and desired future character of the locality.

2. Built form non-compliances particularly building height, bulk and scale.

3. Traffic impacts.

4. Acoustic privacy impacts.

5. Wind effects.

6. View impacts.

12. The parties agree, and I am satisfied, that the amended DA and conditions of consent have been finalised giving appropriate consideration to matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

13. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the WLEP, the site is zoned E1 Local Centre. The amended DA - characterised as shop top housing development - is permissible with consent within the E1 zone.

14. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the E1 Local Centre zone objectives.

15. Pursuant to cl 4.3 of the WLEP - Height of buildings - the site benefits from a development standard for building height of 14.7m. The amended DA proposes a maximum height of building of 21.5m, which exceeds the development standard by 6.8m or approximately 46.26%.

16. Clause 4.6(3) of the WLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

17. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for height of building, prepared by GSA Planning and dated September 2025.

18. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The amended DA generally presents to the surrounding streetscape as a four-storey building base with two upper levels set back from the primary street and rear lane, which is consistent and compatible with nearby development and recent approvals.

3. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

4. The relevant objectives of the WLEP E1 Local Centre land use zone include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the Respondent’s strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area; to ensure development is of a height and scale that achieves the desired future character of the local centre; to encourage development that is compatible with the local centre’s position in the centres hierarchy; to ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces; to maximise public transport patronage and encourage walking and cycling; and to encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates. I am satisfied the amended DA is consistent with these objectives.

5. The relevant objectives of cl 4.3 of the WLEP - Height of buildings - include to establish building heights that are consistent with the desired future character of the neighbourhood; to establish a transition in scale between zones to protect local amenity; to minimise the loss of solar access to existing buildings and open space; to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion; and to protect the amenity of the public domain by providing public views of the harbour and surrounding areas. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant height of building development standard, and I find to uphold the written request.

20. Pursuant to cl 4.4 of the WLEP - FSR - the site benefits from a development standard for FSR of 2.5:1. The amended DA proposes a maximum FSR of 3.45:1, which exceeds the development standard by 523sqm of gross floor area (GFA) or approximately 38.12%.

21. Similar to the issue of building height, cl 4.6(3) of the WLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

22. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for FSR, also prepared by GSA Planning and dated September 2025.

23. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The amended DA generally presents to the surrounding streetscape as a four-storey building base with two upper levels set back from the primary street and rear lane, which is consistent and compatible with nearby development and recent approvals.

3. The proposed FSR exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

4. The relevant objectives of the WLEP E1 Local Centre land use zone include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the Respondent’s strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area; to ensure development is of a height and scale that achieves the desired future character of the local centre; to encourage development that is compatible with the local centre’s position in the centres hierarchy; to ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces; to maximise public transport patronage and encourage walking and cycling; and to encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates. I am satisfied the amended DA is consistent with these objectives.

5. The relevant objectives of cl 4.4 of the WLEP - FSR - include to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale. I am satisfied the amended DA meets these objectives.

24. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

25. The parties agree, and I am satisfied, that all remaining principal development standards of the WLEP have been met by the amended DA.

26. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area (HCA). However, the site is within close proximity to the Transvaal Avenue HCA. The Applicant has provided a Heritage Impact Statement, prepared by Damian O’Toole Town Planning and Heritage Services, dated August 2024. This document assess the amended DA concluding that the proposed works are appropriate and will have a neutral impact on the setting of the Transvaal Avenue HCA. I am satisfied that the effect of the amended DA on the heritage significance of the locality is consistent with the objectives of cl 5.10.

27. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is situated within a flood planning area. The amended DA is supported by a Flood Risk Management Report, prepared by JCO Consultants, dated 19 August 2024, and by stormwater plans prepared by Woods Bagot dated 26 August 2024. I am satisfied that the amended DA satisfactorily addresses those matters of consideration set out at cl 5.21(2) and (3) of the WLEP.

28. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is situated within a Class 2 area as mapped in the WLEP. The amended DA is accompanied by a Preliminary Desktop Geotechnical and Hydrogeology Review, prepared by Stantec and dated 15 May 2024. This review concludes that acid sulfate soils are unlikely to be encountered and suggests further testing will be required during the detailed investigation phase. I am satisfied that the amended DA satisfactorily addresses those matters set out at cl 6.1 of the WLEP.

29. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Preliminary Desktop Geotechnical and Hydrogeology Review, prepared by Stantec and dated 15 May 2024. This report makes recommendations to minimise the risks of landslip to an acceptable level and minimise risk to nearby properties. The parties agree, and I am satisfied, that the matters set out at cl 6.2(3), have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.

30. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

31. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary Site Investigation (PSI), prepared by Stantec and dated 15 May 2024, and a Detailed Site Investigation (DSI), prepared by Elite Geosciences and dated 3 June 2025. These studies conclude that the site can be made suitable for the proposed use. Agreed conditions of consent are imposed requiring compliance with the recommendations in the PSI and DSI.

32. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1814685M, dated 25 September 2025, has been provided with the amended DA.

33. Further to s 2.1(5) of SEPP Sustainable Buildings, the parties agree and I am satisfied the BASIX certificate quantifies the embodied emissions attributable to the proposed development have been quantified. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

34. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

35. Chapter 6 of SEPP BC deals with water catchments and is relevant to the amended DA. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment.

36. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

37. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment.

38. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the amended DA is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems, and will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody, or on the natural recession of floodwaters into wetlands or other riverine ecosystems.

39. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

40. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

41. The parties agree, and I am satisfied, that State Environmental Planning Policy (Housing) 2021 (SEPP Housing) is an additional relevant environmental planning instrument.

24. Chapter 4 of SEPP Housing deals with the design of residential apartment development.

25. Pursuant to the relevant provisions set out at Ch 4 of SEPP Housing and the EPA Reg, the Applicant's architect, Woods Bagot (and its qualified designer Mr Jason Fraser - NSW registered architect 8431) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the final amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

26. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

27. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

28. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 24 September 2025.

Orders

47. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA507/2024 and rely upon the amended plans and documents referred to in Condition A.3 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $20,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA 507/2024 (as amended) for the demolition of existing buildings and construction of a new six-storey shop top housing development with basement parking at 8-10 Cross Street, Double Bay, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (665 KB, pdf)

Architectural Plans (13.1 MB, pdf)

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Decision last updated: 21 October 2025