Rosewell v Woollahra Municipal Council

[2025] NSWLEC 1675

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rosewell v Woollahra Municipal Council [2025] NSWLEC 1675

Hearing dates:

Conciliation conference 12 September 2025

Date of orders:

18 September 2025

Decision date:

18 September 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent's costs thrown away by the filing of documents set out in Annexure B to amend the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $10,000.00 exclusive of GST within 28 days of the making of this order.

(2) The appeal is upheld.

(3) Development Application No. DA452/2023/1, as amended, for the demolition of the existing single storey (with attic) weatherboard cottage (common wall with No 17 Sutherland Avenue retained) and the constructions of a new three storey dwelling with a basement level, concealed car lift, plunge pool and landscaping at 19 Sutherland Avenue, Paddington 2021, is determined by the grant of consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – attached dwelling – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

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

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2

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

Woollahra Local Environmental Plan 2014, cll 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Alexander Rosewell (First Applicant)
Carolyn Sein (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)

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

File Number(s):

2024/403883

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) against the refusal of development application DA-452/2023. The development application seeks development consent for the demolition of the existing cottage dwelling (except the common wall with 17 Sunderland Avenue) and construction of a three storey dwelling with basement level, car lift, pool and landscaping (DA) at 19 Sutherland Avenue, Paddington (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 (NSW) to the Applicant amending development application DA-452/2023 in accordance with the documents listed at Annexure B (amended DA).

3. The jurisdictional statement details the key amendments as:

• The rear walls of Levels 1 and 2 have been inset, and the overall building height has been reduced by 300 mm, with associated modifications to terraces, roof elements, skylights, and the rear composition.

• A screen has been introduced to the courtyard by the plunge pool, rear privacy screens on Levels 1 and 2 have been refined, and rear trees have been reduced to 6m in height with a change in species to minimise visual impact.

• The northern balcony to Bedroom 1 and the retreat has been removed, elevations have been refined with additional screening, and balustrades have been made consistent with the street-edge treatment.

• The basement has been redesigned as a tanked structure, the ground floor plate has been increased to meet drainage requirements, an operable flood barrier has been added, and the courtyard has been slightly realigned to accommodate the circulation space around the car lift.

• A compact lift has been added, internal layouts for bedrooms, bathrooms, laundry, and linen have been reconfigured, and the garage waste store has been rearranged for improved functionality.

4. 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 12 September 2025. I have presided over the conciliation conference.

5. 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.

Jurisdictional Prerequisites

6. As part of the 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.

8. In considering if the agreement is a decision that could be made by the Court, the obligation is strictly limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

9. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owners consent

10. I am satisfied that owners’ consent has been provided for the DA as the Applicants are the owners.

Community notification and objections

11. The Respondent notified the DA between 17 January 2023 and 1 February 2024, with 24 submissions objecting to the proposed were received (from 19 separate objectors). At the commencement of the duty conciliation, two objectors expressed their concerns orally and also spoke on behalf of several neighbouring properties. Further written objections were also received at the commencement of the conciliation.

12. As the parties have reached agreement, the Court is not able to consider the merits of the proposal, only if the agreement reached is lawful. Notwithstanding, the parties have taken the Court through their consideration of the concerns raised by objectors in the amended DA and how these have been addressed, where possible.

Woollahra Local Environmental Plan 2014

13. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development for an attached dwelling is permitted with consent and the parties’ have had regard to the objectives of the zone.

14. 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, at 8.65m, does not exceed the maximum building height as demonstrated by the Architectural Plans prepared by Simon Rosewell Pty Ltd dated 12 August 2025 (Architectural Plans).

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

4. Clause 5.10 heritage conservation applies to the site, as the dwelling is located in the Paddington Heritage Conservation Area. I accept that the provisions have been appropriately considered by the parties on the basis of the Heritage Impact Statement prepared by John Oultram Heritage and Design dated November 2023, Structural Engineers Report prepared by Elegant Engineering dated 20 May 2025 and the detailed jurisdictional statement.

5. Clause 5.21 flood planning applies as a portion of the site is located within a flood planning area. I accept the parties’ agreement that the development is compatible with the flood behaviour of the site, will not adversely affect other properties, or safe occupation or evacuation, and will not adversely affect the environment as demonstrated by the Overland Flow Study Report prepared by Accon Engineering dated 6 August 2024 (Flood Study) and the suite of stormwater management plans prepared by Stormwater Engineers Pty Ltd.

6. I accept the parties’ agreement that cl 6.1 does not apply.

7. Clause 6.2 earthworks applies. I accept the parties’ agreement that the amended DA meets the provisions as supported by the Structural Engineering Design Intent Letter and Report prepared by Keystone Structural Engineers Pty Ltd with various dates, Revised Geotechnical Reported and Geotechnical Report prepared by White Geotechnical Group with various dates, Structural Report prepared by Elegant Engineering dated 20 May 2025, Building Investigation and Demolition Report prepared by Groundswell Construction, Site Waste Minimisation and Management Plan prepared by Simon Rosewell dated 1 October 2022, Architectural Plans and Flood Study.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. 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 but outside the foreshores and waterways area. Part 6.2 is relevant to the site. The parties are satisfied that Ch 6 has been satisfied, and a letter prepared by Stormwater Engineers Pty Ltd dated 28 August 2025 specifically addresses the relevant provisions.

16. The application is also 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.

17. 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

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree that the site has a long history of residential use and there is 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.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of SEPP Sustainable Buildings (including s 2.1 embodied emissions), and s 27 of the EPA Reg.

Conclusion

20. 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.

21. 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.

22. 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

23. The Court orders:

1. The Applicant is to pay the respondent's costs thrown away by the filing of documents set out in Annexure B to amend the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $10,000.00 exclusive of GST within 28 days of the making of this order.

2. The appeal is upheld.

3. Development Application No. DA452/2023/1, as amended, for the demolition of the existing single storey (with attic) weatherboard cottage (common wall with No 17 Sutherland Avenue retained) and the constructions of a new three storey dwelling with a basement level, concealed car lift, plunge pool and landscaping at 19 Sutherland Avenue, Paddington 2021, is determined by the grant of consent, subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (498 KB, pdf)

Annexure B (115 KB, pdf)

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Decision last updated: 18 September 2025