Masolage Holdings Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1705

Land and Environment Court

New South Wales

Medium Neutral Citation:

Masolage Holdings Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1705

Hearing dates:

Conciliation conference on 24 November 2023; 15 December 2023; 9 February 2024; 8 & 25 March 2024; 12 & 21 June 2024; 19 August 2024; 2 & 23 September 2024; 4 & 18 October 2024; s34 agreement received on 30 October 2024

Date of orders:

05 November 2024

Decision date:

05 November 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amended application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. 278/2022 for the use of part of a heritage item for occasional events on land at 68 Darling Point Road, Darling Point including the lawns, ballroom, dining and other parts of the land and building for up to 41 event days over a 12-month period, subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – development application – use of part of a heritage item for occasional events – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17(10B), 4.47, 8.15(3)

Heritage Act 1977, s 58

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Woollahra Local Environmental Plan 2014, cl 5.10

Texts Cited:

AS/NZS 4282: Control of the obtrusive effects of outdoor lighting

Woollahra Community Participation Plan (adopted 26 June 2023)

Category:

Principal judgment

Parties:

Masolage Holdings Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
N Eastman SC / J Smith (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
S Moran & Co Solicitors & Notaries (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/185618

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings arise following an appeal against Woollahra Municipal Council’s refusal of a development application DA278/2022 (DA), which sought consent for the use of part of a heritage item (Swifts) for occasional events on land legally described as Lot 2 in DP221605 known as 68 Darling Point Road, Darling Point, NSW 2027 (site).

2. The site is located on the corner of Darling Point Road and Thornton Street, Darling Point; and bounded by Hamden Avenue to the rear. It has a total area of 13, 566.75 m² (1.36 hectares).

3. The main building is a two-storey, sandstone, Victorian Gothic revival mansion with a three/storey tower and is set within extensive landscape grounds (known as Swifts). It is listed on the state Heritage Register (Listing No. 146).

4. It is the largest, most intact, late-Victorian house in Sydney (apart from Government House). The dwelling house, outbuildings, grounds, gardens, sandstone fences and retaining walls, garden terraces, gateposts, gates, sculptures, two Morton Bay figs, lemon-scented gum, bunya pine, and Norfolk Island Pine are all part of this State-listed heritage item. 

5. The site contains extensive lawns along the Darling Point Road frontage. The northern lawn is accessed via the colonnade and terrace area. To the south of the dwelling is a collection of outbuildings including a double garage and stable building. To the rear of the dwelling is an in-ground swimming pool, kitchen garden, tennis court pavilion and an underground garage.

6. The site is surrounded by a mixture of residential development, including high-density residential towers to the north and south; and single residential dwellings to the east and west. Local commercial uses are concentrated in the Double Bay to the east and Edgecliff to the south. While primarily residential in nature, Darling Point at the same time offers also a cafe convenience store, the Saint Mark’s Church, Ascham Girls’ School and McGill Park. 

7. Darling Point is an historic suburb and contains buildings and items of heritage significance: Carthona, one-time resident of the NSW Surveyor General, Bishopscourt, now in private hands, once the residence of the Anglican Archbishop of Sydney, and Lindesay, owned by the National Trust of Australia and which - like Swifts - through the application of a conservation incentive clause - often hosts private events on a commercial basis.

The s34 conciliation conference

8. 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 first held on 24 November 2023 and reconvened over an extended period. I presided over the conciliation conferences.

9. During the s34 conciliation conference, the applicant amended its application in an effort to resolve the outstanding contentions. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions (SOFC) have been resolved by the preparation of the following:

• the amended plans and documents referred at note B of the agreement between the parties under s 34(3) of the LEC Act (s34 agreement), and

• agreed conditions of consent. (A reference to a condition below is to the agreed conditions.)

10. As the Council is satisfied that the amendments to the DA have resolved the contentions, the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involved the grant of a development consent subject to the conditions in Annexure A.

11. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

Jurisdictional preconditions

12. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the parties’ s34 written agreement.

13. After a consideration of the parties’ submissions and the evidence, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following:

14. The site is owned by Masolage Holdings Pty Ltd. Owner’s consent was provided by Masolage Holdings Pty Ltd at the time of lodgement of the DA, see the owner’s consent form filed with the Class 1 Application at Tab 2.

15. The DA was notified between 27 July 2022 and 28 August 2022 in accordance with the Woollahra Community Participation Plan (adopted 26 June 2023). The Council received 174 submissions. As Council has assessed that the amended proposal will not generate greater impacts than the previously advertised application re-notification was not required under the Plan.

Integrated development

16. The DA is integrated development as an approval is required under s 58 of the Heritage Act 1977.

17. On 2 November 2022, the Heritage Council of NSW provided General Terms of Approval (GTAs) in accordance with s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). The conditions set out in the GTAs are included in Condition A.4.

Woollahra Local Environmental Plan 2014 (LEP)

Permitted development – Heritage conservation and conservation incentives under cl 5.10(10) of the LEP

18. The site is located in the R2 Low Density Residential zone under the LEP. Any development not specified as being permitted with consent or permitted without consent in that zone is prohibited under the Land Use Table. The proposed use of part of the site for occasional events would likely be characterised as being for the purpose of a function centre under the LEP. That use is not specified as being permitted with consent in the R2 zone and so is prohibited.

19. The proposed use of part of the site for occasional events is nevertheless permissible under cl 5.10(10) of the LEP which allows development for any purpose on the land on which a heritage item is erected, subject to satisfying the requirements of that clause.

20. Clause 5.10(10) of the LEP provides that:

Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected … even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

21. The Council has assessed that the proposed development, as documented in the conditions and approved Plan of Management (POM), satisfies the requirements of cl 5.10(10) of the LEP for the reasons set out below.

Clause 5.10(10)(a) - The conservation of the heritage item … is facilitated by the granting of consent

22. The site is a State significant heritage item. Its conservation is facilitated by the granting of consent for the following reasons.

23. Maintaining and conserving a State heritage significant asset of the grandeur of Swifts is an ongoing expense. To ensure the heritage item is retained in a manner commensurate with its significance, substantial ongoing funds are required for annual, repair, restoration and conversation, cyclical maintenance and security costs.

24. The site has a number of heritage works that require attention as outlined in the Schedule of Conservation Works dated 18 March 2024 prepared by Weir Phillips Heritage and Planning (Schedule of Conservation Works) (s34 agreement bundle Tab 1). In addition, unplanned maintenance may be required and more general ongoing maintenance is required for a large, complex, State-listed heritage property such as Swifts.

25. The Schedule of Conservation Works outlines specific and more general works required, as well as a conservation maintenance plan and a cyclic maintenance program, all of which will have a beneficial impact on the heritage significance of the site.

26. Income generated from the occasional use of the site for commercial events under the DA proposal will assist to fund the undertaking of the heritage works outlined in the Schedule of Conservation Works and other unplanned conservation works and, accordingly, facilitate the conservation of the heritage item and the heritage significance of the site.

27. The use under cl 5.10(10) also allows for the ongoing recognition of the site by the public who will have an opportunity to visit and appreciate its heritage significance.

Clause 5.10(10)(b) and (c) - The proposed development is in accordance with a heritage management document that has been approved by the consent authority, and the proposed development would require that all necessary conservation work identified in the heritage management document is carried out

28. The LEP defines “heritage management document” as:

heritage management document means—

(a) a heritage conservation management plan, or

(b) a heritage impact statement, or

(c) any other document that provides guidelines for the ongoing management and conservation of a heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.

29. The applicant has provided the following documents for the purposes of cl 5.10(10)(b):

• the Schedule of Conservation Works;

• Conservation Management Plan (1995 Conservation Analysis and Conservation Guidelines for Swifts) (s34 agreement bundle Tab 2);

• Heritage Impact Assessment by GML Heritage dated 27 June 2022 (Class 1 Application Tab 7);

• NSW Heritage Council General Terms of Approval dated 2 November 2022 (Class 1 Application Tab 8),

(together, the Heritage Management Documents).

30. The Schedule of Conservation Works outlines specific conservation works required for the site, and identifies how those works should be managed and prioritised as well as a conservation maintenance plan and a cyclic maintenance program, together with the estimated expenditure required for those works.

31. Condition A.8 ensures that heritage conservation works are being undertaken by requiring that a schedule of conservation works is prepared and submitted to Council annually in advance of a management meeting between the applicant and Council, with a requirement for the schedule to demonstrate how a reasonable percentage of the projected annual income from the holding of events will be allocated to the projected prioritised conservation works. At the end of each 12-month cycle, a list of all conservation works and associated expenditure, including both planned and unforeseen works completed within the 12-month cycle, must be submitted to Council.

32. The parties submit and I accept that the Schedule of Conservation Works, together with Condition A.8, are appropriate mechanisms to ensure that all necessary conservation work will be carried out in accordance with the Heritage Management Documents.

33. The parties submit and I accept that conditions A.3, A.4, B.1, B.2, C.9, C.21, C.26 and C.27 require that the development be carried out in accordance with the Heritage Management Documents (see further detail below).

Clause 5.10(10)(d) - The proposed development would not adversely affect the heritage significance of the heritage item, including its setting …

34. The proposed development does not involve any physical works on the site or changes to the interior or exterior of the dwelling on the site. Accordingly, there is no adverse impact on the heritage significance of the heritage item nor its setting.

35. The NSW Heritage Council GTAs dated 2 November 2022 contain the following further protections to ensure that the proposed development will not adversely affect the heritage significance of the heritage item including its setting:

1. The erection of marquees is approved within the southern lawn only.

2. No additional permanent structures or modifications of the dwelling to facilitate temporary events shall be approved.

3. Site protection measures to ensure significant fabric and values of the site are protected as follows:

1. Significant built and landscape elements are to be protected from potential damage during site preparation and events. Protection systems must ensure significant fabric, including landscape elements, is not damaged or removed.

2. The events shall be supervised, including set up and removal, to ensure that required protection measures are implemented and maintained.

3. A site induction package shall be prepared that includes heritage information for all organisers and tradespeople engaged in setting up and management of events to ensure that any works required to facilitate these events re-undertaken with minimal impacts to heritage values.

4. Site monitoring to ensure that all approved activities are conducted according to the development consent and impacts to the site are managed effectively. That site monitoring requires a quarterly monitoring report to be submitted to the Heritage Council of NSW which includes:

1. the number and nature of events held within the property during the reporting period;

2. the location of events held within the property during the reporting period, including any marquees;

3. photographs with date stamps of bump in, set up and bump out; and

4. a report by a suitably qualified heritage consultant with information on any impacts occurring to significant fabric, landscape elements and moveable heritage items.

36. To further protect the heritage significance of the site, Condition B.2 requires that all organisers and tradespeople engaged in setting up and management of events must be provided with a site induction package, which must include heritage information on the built heritage of the site to ensure that any works required to facilitate events are undertaken with minimal impacts to heritage values.

37. Condition C.26 provides that no permanent structures or furniture are permitted. Marquees, tables, chairs and decorations are permitted only where they do not require any modification to the existing building fabric or landscape.

38. For the above reasons, the parties submit and I accept that the proposed development would not adversely affect the heritage significance of the heritage item, including its setting.

Clause 5.10(10)(e) - The proposed development would not have any significant adverse effect on the amenity of the surrounding area

39. The proposed development is subject to comprehensive conditions and a POM which in all respects seek to protect the amenity of the surrounding area to the site.

40. The POM, together with the Swifts Site Plan, sets out how events at the site will be carefully managed to minimise negative impacts on the surrounding area by reducing noise, traffic and lighting before, during and after each event. These matters are considered holistically to minimise impact on the amenity of the surrounding area.

41. The following areas identified as having any potential to have an adverse effect have been comprehensively addressed by way of conditions as follows to ensure there is no significant adverse effect on the amenity of the surrounding area.

Number, type and times of events

42. The number of event days approved under the DA are limited to 41 days per annum. This equates to less than three events per month.

43. Events held at the site are classed and limited according to the following schedule, with the maximum number and frequency of each type of event as prescribed by Conditions C.1-C.5 and the POM:

Type of Event	Days and Times*	Maximum No. of Patrons	Event Frequency
High	9.00am to 10.00pm Monday to Saturday (all event areas) 9.00am to 6.00pm Sunday (all event areas)	175	6 per calendar year
Moderate	9.00am to 10.00pm Monday to Saturday (all event areas) 9.00am to 6.00pm Sunday all event areas)	120	6 per calendar year 8 per calendar year (reviewable)
Low (Evening)	6.00pm to 10.00pm Monday to Saturday (all event areas)	60	12 per calendar year 15 per calendar year (reviewable)
Low (Day)	9.00am to 6.00pm Monday to Sunday (all event areas)	60
Meetings/ Lunch/ Dinner (Internal)	11:00am to 10:00pm Monday to Sunday	24	N/A
Exhibitions (Internal)	10.00am to 10.00pm, Monday to Sunday	60 at any one time	6 per calendar year
Unique Events	10.00am to 6.00pm, Monday to Sunday	General public access permitted with the following limits at any one time: 175 patrons (utilising the southern lawn) 250 patrons (utilising all event areas, with the exception of the southern lawn).	6 per calendar year (non-consecutive) 3 x 2 consecutive days (reviewable)

44. The event frequency set out in the above table is the subject of a reviewable condition in the conditions for the purposes of s 4.17(10B) of the EPA Act. The reviewable condition operates to provide a degree of flexibility in mitigating any environmental impacts in coordination with the operation of the POM to permit a reduction in the number of Moderate Events to 6 per calendar year and Low Events to 12 per calendar year, if appropriate.

45. To further minimise any impact of the site being used for events:

• No more than 2 High or 2 Moderate Events are permitted to be carried out per month.

• All events the subject of the proposed development must end by 10:00PM, with patrons to have vacated the site by 10:30PM.

Acoustic privacy

46. In addition to the above restrictions on the maximum number of patrons at the relevant type of event, the following noise mitigation measures will protect the acoustic privacy of the surrounding residential properties and ensure that any noise impacts associated with the proposed development will not have any significant adverse effect on the amenity of the surrounding area:

1. Restrictions on on-site vehicle activity and set-up/pack-down and deliveries – Condition C.8 requires that event set-up and deliveries shall occur at the site on the day of, or two business days before the event, between the hours of 9:00AM and 6:00PM, and event pack-up must occur on the day of the event, or within two business days after the event between 9:00AM and 6:00PM. No event pack-up is to occur on a public holiday. All event set-up/pack-down vehicles must enter the site via the northern gate on Darling Point Road. No deliveries/pick-ups vehicles are to park or use the site entry located on Hampden Avenue.

2. Waste management – Waste consolidation and separation of general waste must not occur after 10pm and waste collection is to occur on the day of the event or within two business days after the event, between the hours of 9:00AM and 6:00PM (Condition C.22).

3. Glass sorting and collection – No bottle or glass sorting (including transfer from one receptacle to another), recycling or collection shall take place between 8:00PM and 8:00AM Monday to Saturday, and 8:00PM and 10:00AM Sundays and Public Holidays (Condition C.24).

4. Restrictions on the use of mechanical plant equipment – The use of any fixed or mobile mechanical plant and equipment (e.g. generators, exhausts, fans, etc.) must not contribute an LA_eq,_15minute noise level that exceeds background LA_90(15minute) + 5 dB on or within the boundary of any potentially affected receiver location (Condition B.5).

5. Procedures to ensure patrons depart from the site in an orderly manner and management of disturbance complaints (Condition C.15) and procedures for incidents involving acts of violence (Condition C.20).

6. Use of internal noise limiters as follows (Condition C.17):

1. An approved noise limiter must be installed in the Ballroom. The limiter must be calibrated and set by the project acoustical consultant to ensure the music LA_{OCT10(15minute)} does not exceed the noise limit in Table 1. The calibration level for the limiter must be reported and submitted to Council. The noise limiter must be installed in a locked cabinet located in a secure area. Access to the noise limiter post calibration must be restricted to the owner of the property and/or project acoustical consultant and made available to Council officers upon request.

2. All amplification equipment in the Ballroom must be connected in such a manner that the noise levels produced are controlled by a noise limiter set to the limit specified in Table 1.

Table 1   L₁₀ Sound Pressure Limit Inside Ballroom

L10 Reverberant Sound Pressure Levels (dB) at Octave Band Centre Frequencies (Hz) (Pre-6pm)
31.5	63	125	250	500	1k	2k	4k	8k	dB(A)
75	77	90	88	90	87	84	79	74	91

Table 1.2

L10 Reverberant Sound Pressure Levels (dB) at Octave Band Centre Frequencies (Hz) (Post-6pm)
31.5	63	125	250	500	1k	2k	4k	8k	dB(A)
72	74	87	85	87	84	81	76	71	88

7. To protect the amenity of surrounding properties, noise controls for event music are as follows:

1. No amplified music is permitted outdoors.

2. Amplified music is permitted indoors, provided the doors and windows remain shut (other than for access and egress) after 6:00PM.

3. The amplification equipment used within the Ballroom shall be operated such that the music does not exceed the levels in Table 1 and Table 1.2 of Condition C.17 (as set out above).

4. No brass, wind or percussion instruments are permitted outdoors. Live acoustic string instruments until 10:00PM on the northern lawn and 9:00PM on the southern lawn are permitted.

5. PA systems outdoors are to be used for speeches only.

Traffic and parking

47. The Traffic Report of McLaren Traffic Engineering dated 3 October 2024 (Traffic Report) (s34 Agreement Bundle Tab 5), provides comprehensive detail in relation to the management of the traffic and parking associated with each event, which has been incorporated into the conditions and includes provisions relating to the following:

• Use of a traffic controller/parking supervisor (Condition C.11);

• Use of traffic signage (Condition C.11);

• Management of pick-up and drop-off (Condition C.12);

• Use of a shuttle bus service for certain events (Condition C.13);

• Availability of onsite parking (Condition C.14);

48. Condition C.34 otherwise requires that the operation and management of the site shall be in accordance with the Traffic Report.

Lighting/Light spill

49. Condition C.32 requires that, to protect the surrounding properties from adverse light spill impact, events at the site must comply with the following:

• during events, outdoor lighting must comply with AS/NZS 4282: Control of the obtrusive effects of outdoor lighting. The maximum luminous intensity from each luminaire and threshold limits must not exceed the level 1 control relevant under tables in AS/NZS 4282;

• flood lighting is contained wholly within the site;

• lighting of the garden and outdoor areas is directed into the centre of the site;

• the building façade and selected trees are the only elements to be illuminated with upward facing lighting;

• all external flood lighting is to be turned off by 10:30PM;

• no strobe lighting, flashing lights or fireworks are permitted; and

• no lighting other than emergency or wayfinding lighting is provided in the restricted lighting zone identified in the POM.

50. The imposition of appropriate conditions, together with the approved POM, ensure that any adverse impact is acceptable and suitability controlled so that the proposed development will not have a significant adverse effect on the amenity of the surrounding area.

51. The parties submit and I accept that each of subcll (a)-(e) of cl 5.10(10) are positively addressed, so that the applicant is able to make use of the heritage incentive provisions in cl 5.10(10). Consequently, the Court may grant consent to the proposed development notwithstanding that it is not a permissible use in the R2 Low Density Residential zone.

52. Accordingly, the parties submit and I accept that the proposed development satisfies the requirements of cl 5.10(10) of the LEP and is permitted development.

Conclusion and orders

53. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

54. The Court notes:

1. That Woollahra Municipal Council, as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the applicant amending DA 278/2022 to rely on the following plans and materials:

Reference	Description	Author	Date
001	Site Plan	Carved Studio	September 2024
Not specified	Plan of Management	Masolage Holdings Pty Ltd	26/09/2024
230447.01FJ	Traffic Report	McLaren Traffic Engineering	03/10/2024
C431	Schedule of Conservation Works	Weir Phillips Heritage & Planning	18/03/2024

2. The applicant has filed the amended application with the Court on 30 October 2024.

55. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amended application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application no. 278/2022 for the use of part of a heritage item for occasional events on land at 68 Darling Point Road, Darling Point including the lawns, ballroom, dining and other parts of the land and building for up to 41 event days over a 12-month period, subject to the conditions set out in Annexure “A”.

………………..

S Dixon

Senior Commissioner of the Court

Annexure A (438955, pdf)

**********

Decision last updated: 05 November 2024