Denwol Double Bay Pty Ltd v Woollahra Municipal Council

[2025] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:

Denwol Double Bay Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1285

Hearing dates:

Conciliation Conference 10 December 2024, 30 January, 17, 27 February 2025

Date of orders:

02 May 2025

Decision date:

02 May 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA410/2023/1 (as amended) for the demolition of the existing residential flat building and construction of a three-storey residential flat building at 17-19 Guilfoyle Avenue, Double Bay NSW 2028 is determined by the grant of development consent, subject to the conditions set out in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away of $12,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15, Sch 1, s 8A

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, cl 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Housing) 2023

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

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

Category:

Principal judgment

Parties:

Denwol Double Bay Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
D Havadjia (Solicitor) (Respondent)

Solicitors:
Reid & Vesely Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/253597

Publication restriction:

No

Judgment

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

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on Site and at Council Chambers.

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

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

Satisfaction as to Jurisdiction

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

Woollahra Local Environmental Plan 2014 (WLEP)

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

Clause 5.10 ‘Heritage conservation’

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

Clause 5.21(2) ‘Flood planning’

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

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

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

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

Zone Objectives

12. Clause 2.3(2) of the WLEP requires that the consent authority have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

13. The objectives of the R3 Zone are reproduced as follows:

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.

14. A consideration of the relevant C3 zone objectives demonstrates that the proposed development is consistent with these zone objectives.

15. I accept the parties’ analysis and consideration of other provisions of the WLEP such as acid sulphate soils (cl 6.1) and earthworks (cl 6.2) discussed in detail in the Statement at page 4.

Development Standards – FSR and Height of Buildings

16. The Proposed Development requires two cl 4.6 requests to justify a contravention of the Floor Space Ratio (FSR) development standard in cl 4.4A of the WLEP and a contravention of the development standard for height of buildings set out in cl 4.3 of the WLEP. The Applicant relies on an updated written request under cl 4.6 of the WLEP to vary the development standards.

17. Updated cl 4.6 requests were prepared by GSA Planning dated January 2025: [see detail set out in the Statement at pages 2 and 3].

18. The parties agree that the cl 4.6 requests are prepared with the relevant requirements under cl 4.6(3), the development will be in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 ‘Medium Density Residential’ zone, and there are adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary.

19. The Court accepts the parties’ position and I am satisfied to make the finding that the Applicant’s written requests under cl 4.6 of the WLEP to vary the floor space ratio development standard under cl 4.4 of the WLEP and the height of buildings standard under cl 4.3 of the WLEP for the Proposed Development at 17-19 Guilfoyle Avenue, Double Bay NSW 2028, are upheld.

State Environmental Planning Policies (SEPPs)

20. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties’ Statement at pages 5, 6 and 7, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

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

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021

3. State Environmental Planning Policy (Sustainable Buildings) 2022

4. State Environmental Planning Policy (Housing) 2023

Public Consultation

21. The development application was publicly notified between 29 November 2023 and 19 January 2024 in accordance with s 8A of Sch 1 of the EPA Act. Two submissions were received and have been taken into account in the preparation of the final plans and the conditions of consent. One neighbour addressed the Court at the Site inspection. The parties have had regard to the submissions received from the resident objectors which has also informed the amendments to the development application

22. I am satisfied that the objectors’ reasonable concerns were considered by the parties and they were accorded procedural fairness.

Conclusion

23. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

24. 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. 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.

Notations:

25. The Court notes:

1. That the Respondent as the relevant consent authority has agreed, under subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA410/2023/1 to rely on the following plans and documents:

No	Document	Drawing No.	Prepared by	Rev	Date
1.	Architectural Plans
	Basement Plan	DA2000	MHNDUnion	D	21/1/2025
	Ground Floor Plan	DA2001	MHNDUnion	E	29/1/2025
	Level 1 Floor Plan	DA2002	MHNDUnion	E	29/1/2025
	Level 2 Floor Plan	DA2003	MHNDUnion	E	29/1/2025
	Roof Plan	DA2004	MHNDUnion	D	21/1/2025
	Elevation North	DA3000	MHNDUnion	D	21/1/2025
	Elevation South	DA3001	MHNDUnion	D	21/1/2025
	Elevation East	DA3002	MHNDUnion	D	21/1/2025
	Elevation West	DA3003	MHNDUnion	D	21/1/2025
	Sections	DA3100	MHNDUnion	E	29/1/2025
	GFA Calculations	DA9000	MHNDUnion	E	29/1/2025
	Deep Soil Area Calculations	DA9002	MHNDUnion	D	21/1/2025
	Height Plane Study	DA9003	MHNDUnion	D	21/1/2025
	Excavation Calculation	DA9004	MHNDUnion	D	21/1/2025
	Solar Access	DA9100	MHNDUnion	D	21/1/2025
	Solar Access	DA9101	MHNDUnion	D	21/1/2025
	Amended Swept Path Analysis	23165	Varga Traffic Planning Pty Ltd	RV	21/1/2025
	BASIX Certificate	1422833M_05	NSW Planning, Industry & Environment	-	7/02/2025
2.	Landscape Plans
	Ground Level	DA-2312-01-J	Sturt Noble	J	21/01/2025
	Level 1 & Level 2 Template	DA-2312-02-H	Sturt Noble	H	17/12/2024
	Planting Schedule	DA-2312-03-I	Sturt Noble	I	17/12/2024
	Tree Canopy Plan	DA-2312-04-F	Sturt Noble	F	17/12/2024
	Deep Soil Plan	DA-2312-05-F	Sturt Noble	F	21/01/2025
	Landscape Details	DA-2312-06-D	Sturt Noble	D	17/10/2024
Landscape Specifications & Maintenance	DA-2312-07	Sturt Noble	D	17/10/2024
3.	Stormwater Plans
	Sediment and Erosion Control Plan	PS01-B300-D	Martens	D	17/01/2025
	Sediment and Erosion Control Details	PS01-B310-A	Martens	A	11/09/2023
	Drainage Plan	PS01-E100-D	Martens	D	17/01/2025
	Drainage Details	PS01-E200-B	Martens	B	02/01/2024
	Water Quality Catchment Plan, Model and Results	PS01-E700-C	Martens	C	02/01/2024
4.	Reports
	Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Floor Space Ratio (FSR) (Amended)	JOB NO. 21518	GSA Planning	-	January 2025
	Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Height of Building (Amended)	JOB NO. 21518	GSA Planning	-	January 2025
	Preliminary Geotechnical, Hydrogeological and Acid Sulfate Soil Assessment	Document No. P2309481JR03V04	Martens & Associates Pty Ltd	-	February 2024
	Remedial Action Plan	Document No: P2309481JR06V03,	Martens & Associates Pty Ltd	-	August 2024
	Document No: 2024/0299	Tree Protection Plan and Specifications	George Palmer, Botanics P/L	-	December 2024
	Document No: N/A,	Arboricultural Impact Assessment and Management Plan	George Palmer, Botanics P/L	-	August 2024

26. The Applicant has filed the amended plans and documents listed above.

Orders:

27. The Court orders:

1. The appeal is upheld.

2. Development Application DA410/2023/1 (as amended) for the demolition of the existing residential flat building and construction of a three-storey residential flat building at 17-19 Guilfoyle Avenue, Double Bay NSW 2028 is determined by the grant of development consent, subject to the conditions set out in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away of $12,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders.

L Byrne

Acting Commissioner of the Court

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253597.2024 Annexure A

Decision last updated: 02 May 2025