Royal v Woollahra Municipal Council

[2025] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:

Royal v Woollahra Municipal Council [2025] NSWLEC 1424

Hearing dates:

Conciliation conference 12 June 2025

Date of orders:

17 June 2025

Decision date:

17 June 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No 2024/389/1 for a new double garage and new vehicular crossover with landscaped roof at the Wunulla Road frontage of 16 Wunulla Road, Point Piper is granted development consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – garage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

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

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 4.3, 4.4E, 4.6

Category:

Principal judgment

Parties:

David Royal (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

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

Solicitors:
King & Wood Mallesons (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

2024/477231

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-2024/389/1. The development application seeks development consent for a new double garage and new vehicular crossover with landscaped roof (DA) at 16 Wunulla Road, Point Piper legally described as Lot 1, Section 4 in DP 3556 (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 to the Applicant amending development application DA-2024/389/1 in accordance with the document listed below (amended DA):

1. Clause 4.6 – Exceptions to Development Standards, Request to Vary Clause 4.4E - Floor Space Ratio (FSR written request) prepared by SJB Planning dated 14 April 2025.

3. 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 12 June 2025. I have presided over the conciliation conference.

4. 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.

5. 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.

6. 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

7. 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.

8. I am satisfied that owners consent accompanied the DA as provided in the Class 1 application. The Respondent notified the DA between 16 October 2024 to 31 October 2024. No submissions were received.

Woollahra Local Environmental Plan 2014

9. The site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development for a garage that is ancillary to a dwelling house (including an existing development consent for a new dwelling DA 610/2021/1) is permitted with consent and I have had regard to the objectives of the zone.

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

1. 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, which is between 2.6m to 3m, as demonstrated by the architectural plans prepared by Tzannes dated 18 September 2024.

2. Clause 4.4E floor space ratio (FSR) applies, which permits am FSR of 0.5:1. The parties submit that the previous DA granted for the site has an FSR of 0.47:1. The proposed FSR, as a result of the development, will be 0.507:1 and a variation of 8m². I accept the parties’ agreement that the amended DA is accompanied by a FSR written request which satisfactorily addresses all of the relevant provisions of cl 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. 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. Part 6.2 is relevant to the site.

12. The amended DA relies on the stormwater plans that were part of the dwelling house DA. Conditions within Annexure A will appropriately regulate construction impacts and ongoing stormwater management. I accept that the proposed development is unlikely to have an adverse environmental impact.

13. 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

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The Statement of Environmental Effects prepared by SJB Planning dated 19 September 2024 states that the site has a 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 RH have been adequately addressed.

Conclusion

15. 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.

16. 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.

17. 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

18. The Court orders:

1. The appeal is upheld.

2. Development Application No 2024/389/1 for a new double garage and new vehicular crossover with landscaped roof at the Wunulla Road frontage of 16 Wunulla Road Point Piper is granted development consent, subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A (835 KB, pdf)