O'Connor v Council of the Municipality of Woollahra

[2025] NSWLEC 1154

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Connor v Council of the Municipality of Woollahra [2025] NSWLEC 1154

Hearing dates:

Conciliation conference on 27 and 28 February 2025

Date of orders:

18 March 2025

Decision date:

18 March 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA413/2023, as amended, for extensive alterations and additions (New Dwelling) including a new swimming pool and associated landscaping on Lot 1 in Deposited Plan 183374, known as 90 John Street, Woollahra, NSW, 2025, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – dwelling – alterations and additions – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34AA, 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Woollahra Local Environmental Plan 2014, cll 2.7, 4.3, 4.4, 5.10, 6.1, 6.2

Category:

Principal judgment

Parties:

Stephen O’Connor (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Houston Dearn O’Connor Lawyers (Applicant)
Wilshire Webb Lawyers (Respondent)

File Number(s):

2024/438196

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-413/2023. The development application seeks development consent for the alterations and additions including demolition of rear extensions, construction of a rear addition, basement, pool and associated internal and external works (DA) at 90 John Street, Woollahra legally described as Lot 1 in DP 183374 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the Applicant amending development application DA-413/2023 in accordance with the documents listed below (amended DA):

Reference	Description	Author	Date
A1784346	Basix Certificate	20/02/2025
DA-00.1 Rev D	Register, Location Map, Legend	Stephen O’Connor Architecture	20/02/2025
DA-00-02 Rev D	Basix	Stephen O’Connor Architecture	20/02/2025
DA-01. 1 Rev D	Existing Site Plan	Stephen O’Connor Architecture	20/02/2025
DA-01. 2 Rev D	Existing Lower Ground Floor Plan	Stephen O’Connor Architecture	20/02/2025
DA-01. 3 Rev D	Existing Ground Floor Plan	Stephen O’Connor Architecture	20/02/2025
DA-01. 4 Rev D	Existing Roof Plan	Stephen O’Connor Architecture	20/02/2025
DA-02. 1 Rev D	Existing East Elevation	Stephen O’Connor Architecture	20/02/2025
DA-02. 2 Rev D	Existing West Elevation	Stephen O’Connor Architecture	20/02/2025
DA-02. 3 Rev D	Existing South Elevation	Stephen O’Connor Architecture	20/02/2025
DA-02. 4 Rev D	Existing North Elevation	Stephen O’Connor Architecture	20/02/2025
DA-03. 1 Rev D	Existing Section A-A	Stephen O’Connor Architecture	20/02/2025
DA-03. 2 Rev D	Existing Section B-B	Stephen O’Connor Architecture	20/02/2025
DA-03. 3 Rev D	Existing Section C-C	Stephen O’Connor Architecture	20/02/2025
DA-03. 4 Rev D	Existing Section D-D	Stephen O’Connor Architecture	20/02/2025
DA-03. 5 Rev D	Existing Section E-E	Stephen O’Connor Architecture	20/02/2025
DA-03. 6 Rev D	Existing Section F-F	Stephen O’Connor Architecture	20/02/2025
DA-04A. 1 Rev D	Proposed Site Plan	Stephen O’Connor Architecture	20/02/2025
DA-04A. 2 Rev D	Proposed Basement	Stephen O’Connor Architecture	20/02/2025
DA-04A. 3 Rev D	Proposed Lower Ground Floor	Stephen O’Connor Architecture	20/02/2025
DA-04A. 4 Rev D	Proposed Ground Floor	Stephen O’Connor Architecture	20/02/2025
DA-04A. 5 Rev D	Proposed First Floor	Stephen O’Connor Architecture	20/02/2025
DA-04A. 6 Rev D	Proposed Roof Plan	Stephen O’Connor Architecture	20/02/2025
DA-05. 1 Rev D	Proposed East Elevation	Stephen O’Connor Architecture	20/02/2025
DA-05. 2 Rev D	Proposed West Elevation	Stephen O’Connor Architecture	20/02/2025
DA-05. 3 Rev D	Proposed South Elevation	Stephen O’Connor Architecture	20/02/2025
DA-05. 4 Rev D	Proposed North Elevation	Stephen O’Connor Architecture	20/02/2025
DA-06. 1 Rev D	Proposed Section A-A	Stephen O’Connor Architecture	20/02/2025
DA-07. 1 Rev D	Calculations	Stephen O’Connor Architecture	20/02/2025
DA-08. 1 Rev D	Shadow Elevations 4 Ocean Street 9am & 10am	Stephen O’Connor Architecture	20/02/2025
DA-08. 2 Rev D	Shadow Elevations 4 Ocean Street 11am & 12pm	Stephen O’Connor Architecture	20/02/2025
DA-08. 3 Rev D	Shadow Elevations 4 Ocean Street 1pm & 2pm	Stephen O’Connor Architecture	20/02/2025
DA-08. 4 Rev D	Shadow Elevations 4 Ocean Street 3pm	Stephen O’Connor Architecture	20/02/2025
DA-09. 1 Rev D	Plan Shadow 9am & 10am	Stephen O’Connor Architecture	20/02/2025
DA-09. 2 Rev D	Plan Shadow 11am & 12pm	Stephen O’Connor Architecture	20/02/2025
DA-09. 3 Rev D	Plan Shadow 1pm & 2pm	Stephen O’Connor Architecture	20/02/2025
DA-09. 4 Rev D	Plan Shadow 3pm	Stephen O’Connor Architecture	20/02/2025
DA-10. 1 Rev D	Landscape Plan	Stephen O’Connor Architecture	20/02/2025
DA-11. 1 Rev D	Proposed Materials	Stephen O’Connor Architecture	20/02/2025
DA-12. 1 Rev D	Elevation Comparison	Stephen O’Connor Architecture	20/02/2025
DA-12. 2 Rev D	Plan Comparison	Stephen O’Connor Architecture	20/02/2025
DA-12. 3 Rev D	Plan Comparison	Stephen O’Connor Architecture	20/02/2025
Rev 06 Sheet no. 01 – 14	Storm Water Plans	H&M Consultancy	22/01/2025
2024008-Rev 2	Proposed Residential Redevelopment Geotechnical and Hydrogeological Investigation Report	Elite Geosciences	23/01/2025
251538-OIL-DD	Acoustic Engineering Report	Prepared by Acoustic Consulting Engineers	05/02/2025
Project 2024008 Rev 1	Construction Environmental Management Plan	Elite Geosciences	23/01/2025

3. The amendments are summarised as:

• Increased pool setbacks including retention of hedges.

• Increased building setbacks.

• Increased basement setbacks.

• Privacy measures to various windows.

• Further information, including Geotechnical Reports.

4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26-27 February 2025. I have presided over the conciliation conference.

5. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

6. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 7 November 2023. The Respondent notified the DA between 29 November 2023 to 14 November 2023 where a number of submissions objecting to the proposal were received. At the commencement of the proceedings, four objectors expressed their concerns orally. The Court and parties benefitted from understanding the concerns from three of the objector’s properties. A further written objection was also received on site.

10. As the parties have reached agreement, the Court takes no role in considering the merits of the proposal. The parties have taken the Court through their consideration of the concerns raised by objectors in the amended DA.

Woollahra Local Environmental Plan 2014

11. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development for alterations and additions to a dwelling house is permitted with consent and I have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable WLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended DA does not exceed the maximum building height as demonstrated by the architectural plans prepared by Stephen O’Connor Architecture dated 22 January 2025.

3. Clause 4.4E floor space ratio does not apply to the amended DA.

4. Clause 5.10 heritage conservation applies to the site, as the dwelling is a contributory dwelling in the Woollahra Heritage Conservation Area. I accept that the provisions have been appropriately considered by the heritage experts on the basis of the joint expert report filed 25 February 2025 and Heritage Impact Statement prepared by John Oultram Heritage and Design dated October 2023.

5. Clause 6.2 earthworks applies to the amended DA. I accept that the amended DA meets the provisions as demonstrated by the Geotechnical and Hydrogeological Investigation Report and Letter prepared by Elite Geosciences dated 23 January 2025, Construction Environmental Management Plan with Impact Assessment prepared by Elite Geosciences dated 21 February 2025, and Concept Stormwater Drainage Plans prepared by H&M Consultancy dated 22 January 2025 (stormwater plans).

State Environmental Planning Policy (Sustainable Buildings) 2022

13. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (137118M_02) that meets the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 and s 27 of the EPA Regulation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. Chapter 6.2 is relevant to the site.

15. The amended DA is accompanied by stormwater plans that adequately minimise stormwater impacts from the amended DA. The stormwater plans form part of the conditions of consent at Annexure A and further conditions within Annexure A will appropriately regulate ongoing stormwater management. I accept that the proposed development is unlikely to have an adverse environmental impact.

16. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. Council’s assessment report to the Local Planning Panel dated 18 July 2024 (assessment report) states that the site has a long history of residential use. There is therefore no reason to suspect the site is contaminated. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

18. 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.

19. 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.

20. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

21. The Court orders:

1. The appeal is upheld.

2. Development application DA413/2023, as amended, for extensive alterations and additions (New Dwelling) including a new swimming pool and associated landscaping on Lot 1 in Deposited Plan 183374, known as 90 John Street, Woollahra, NSW, 2025, is determined by the grant of development consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 March 2025