Stern v Woollahra Municipal Council

[2025] NSWLEC 1659

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stern v Woollahra Municipal Council [2025] NSWLEC 1659

Hearing dates:

Conciliation Conference on 2 September 2025

Date of orders:

10 September 2025

Decision date:

10 September 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA424/2024/1, as amended, for alterations and additions to a partly constructed two-storey dwelling house approved under Complying Development Certificate No. 24/0074/01, including conversion of a rear garage to a cabana and a new double garage at 34 Rivers Street, Bellevue Hill NSW 2023 identified as Lot 6 in Deposited Plan 87909, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – Development application – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10

Land and Environment Court Act 1979 (NSW), ss 17, 34AA, 34

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, Div 2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11

State Environmental Planning Policy (Resilience and Hazards) 2021

Woollahra Local Environmental Plan 2014, cll 4.3, 4.4E, 6.1, 6.2, 6.9

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Daniella Stern (Frist Applicant)
Leon Elski (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
S Hill (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2025/114816

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicants against the respondent’s refusal of the applicants’ development application (DA424/2024/1) (Development Application) for alterations and additions to a partly constructed two-storey dwelling house approved by way of Complying Development Certificate No 24/0074/01 (CDC) including conversion of a rear garage to a cabana and a new double garage located on land identified as Lot 6 in Deposited Plan 87909, known as 34 Rivers Street, Bellevue Hill (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 17 October 2024 and sought consent for alterations and additions to the CDC approved development including:

1. construction of new double garage;

2. demolition of the existing driveway and construction of a new paved driveway to the proposed new double garage;

3. conversion of existing rear garage to cabana; and

4. extension at the rear of the first floor to accommodate two new exterior terraces which are accessed from each bedroom.

4. For completeness, I note that the CDC approved development, including the swimming pool, is not the subject of the Development Application nor this appeal.

5. The Development Application was notified from 6 to 21 November 2024. Six submissions were received objecting to the proposed development.

6. On 13 February 2025, the Development Application was refused under delegated authority.

7. On 25 March 2025, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

8. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 2 September 2025. I presided over the conciliation conference.

9. Amended plans were filed with the Court on 2 September 2025 (Amended Development Application) cited at [36]. The amendments can be summarised as follows:

1. the reduction in bulk and height of the proposed double garage;

2. the increased setback of the proposed double garage and retention of the existing side planter and vegetation on the boundary with 32 Rivers Street, Bellevue Hill;

3. additional landscaping and provision of a landscape plan prepared by Zenith Landscape Architects dated 19 August 2025 (Landscape Plan);

4. provision of additional privacy measures to the first floor rear terraces, including addition of planter boxes and privacy screening; and

5. provision of Stormwater Plans prepared by Engineering Studio Civil & Structural dated 7 August 2025 (Stormwater Plans).

10. 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. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. 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.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

13. The Development Application was lodged with the consent of the registered proprietor of the Subject Land, being the first applicant in these proceedings (see Class 1 Application, tab 3). For completeness, I note that the applicant for the Development Application as lodged is the second applicant in these proceedings.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. The parties agree that the requirements of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) apply to the Amended Development Application as the Subject Land is located within the Sydney Harbour Catchment. Division 2 in Pt 6.2 sets out general controls applying to development in a regulated catchment.

16. I accept the parties’ submission that the relevant provisions of the BC SEPP have been considered and are satisfied in relation to the Amended Development Application on the basis that the Stormwater Plans provide for the controlled drainage of the Subject Land in accordance with the requirements of the Woollahra Development Control Plan 2015 (WDCP).

17. The parties agree, and I accept, that:

1. For the purposes of s 6.6 of the BC SEPP, the Stormwater Plans and agreed conditions of consent will ensure that:

1. the effect on the quality of water entering a natural waterbody will be neutral, noting the existing site conditions and the limited works proposed; and

2. the impact on water flow in a natural waterbody will be minimised.

2. For the purposes of s 6.7 of the BC SEPP, the proposed development:

1. keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation;

2. will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and

4. minimises any adverse impact on wetlands.

3. For the purposes of s 6.8 of the BC SEPP, the proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems.

4. For the purposes of s 6.9 of the BC SEPP, the proposed development does not affect public access to and from natural water bodies.

5. For the purposes of s 6.10 of the BC SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent local government area.

6. For the purposes of s 6.11 of the BC SEPP, the proposed development is not located on land within 100 metres (m) of a natural waterbody in a regulated catchment.

18. The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. The Amended Development Application is accompanied by BASIX Certificate No. 1754143S_03 dated 27 August 2025 in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 and the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

Woollahra Local Environmental Plan 2014

20. The Subject Land is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). Development for the purposes of dwelling houses is permitted with consent in the R2 zone. I have had regard to the objectives of the R2 zone which are extracted below:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

•  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.

21. The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone.

22. The parties further agree that the Amended Development Application complies with both the height and floor space ratio standards set out in cll 4.3 and 4.4E of the WLEP, respectively.

23. Pursuant to cl 6.1 of the WLEP relating to “acid sulfate soils”, the parties agree that the Subject Land is located within a Class 5 area and the subject works are not located within 500m of adjacent Class 1, 2, 3 or 4 land below 5m Australian Height Datum  (AHD) and by which the water table is likely to be lowered below 1m AHD.

24. Pursuant to cl 6.2 of the WLEP relating to “earthworks”, the parties agree, and I accept that, the Amended Development Application requires minimal earthworks, being only for the foundations of the garage, and the relevant matters in cl 6.2(3) have been considered (see pp 13 and 14 of the Statement of Environmental Effects prepared by Navon Planning dated October 2024 (SEE)).

25. Pursuant to cl 6.9 of the WLEP relating to “tree canopy cover in Zones R2 and R3”, development consent must not be granted unless the consent authority has considered the matters set out in cl 6.9(3). The parties agree, and I accept that the Amended Development Application:

1. now retains the hedge planting located on the boundary with 32 Rivers Road, Bellevue Hill;

2. provides for additional planting (see Landscape Plan); and

3. will improve the planting cover on the Subject Land.

Woollahra Development Control Plan 2015

26. The parties agree, and I accept, that the Amended Development Application is capable of approval having regard to the relevant provisions of the WDCP. In particular, the parties agree that the Amended Development Application is compliant with Control 7 of Part B3.5.4 of the WDCP relating to trafficable areas of roof terraces at or below the second storey being suitably located and screened to prevent direct views to neighbouring habitable rooms and private open space within 9m.

Remaining matters under s 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW)

27. Matters relevant to s 4.15(1)(a) have been generally considered above and in the SEE.

28. In relation to s 4.15(1)(b), the parties agree that the proposed development has an acceptable impact on the natural and built environment, and the social and economic impacts on the locality have been considered and are acceptable.

29. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development.

30. In relation to s 4.15(d), as noted at [5] above, the Development Application was notified between  6 and 21 November 2024 with six submissions received. The submissions raised concerns including:

1. visual privacy and overlooking;

2. acoustic impact from pool equipment;

3. insufficient landscape detail;

4. solar access impacts from the siting of the double garage;

5. non-compliance with side setbacks;

6. amenity, acoustic and privacy impacts from first floor terraces;

7. impacts from siting of double garage; and

8. unreasonable streetscape impacts from the double garage.

31. I am satisfied that the written and oral submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.

32. In relation to s 4.15(1)(e) of the EPA Act, the parties agree, and I accept that, as at the date of the s 34 agreement, there were no unlawful works carried out on the Subject Land. The parties agree that consideration has been given to the public interest.

33. In determining the Amended Development Application, I confirm that I have taken into consideration such of the matters that are of relevance to the proposal listed in s 4.15(1) of the EPA Act.

Conclusion

34. 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.

35. 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.

36. The Court notes that:

1. The respondent, as the relevant consent authority, has approved under s 38(1) of the EPA Regulation, the applicants amending development application No. DA424/2024/1 to rely on the documents below:

Reference	Description	Author	Date
DA001 (Rev 6)	Proposed Site Plan	Studio Coco	22 August 2025
DA050 (Rev 6)	Existing Ground Floor Plan	Studio Coco	22 August 2025
DA051 (Rev 6)	Existing First Floor Plan	Studio Coco	22 August 2025
DA052 (Rev 6)	Existing Roof Plan	Studio Coco	22 August 2025
DA053 (Rev 6)	Existing Garage Plan	Studio Coco	22 August 2025
DA100 (Rev 6)	Proposed Ground Floor Plan	Studio Coco	22 August 2025
DA101 (Rev 6)	Proposed First Floor Plan	Studio Coco	22 August 2025
DA102 (Rev 6)	Proposed Roof Plan	Studio Coco	22 August 2025
DA103 (Rev 6)	Proposed Cabana Plan	Studio Coco	22 August 2025
DA200 (Rev 6)	Elevations - North East	Studio Coco	22 August 2025
DA201 (Rev 6)	Elevations - North West	Studio Coco	22 August 2025
DA202 (Rev 6)	Elevations - South East	Studio Coco	22 August 2025
DA203 (Rev 6)	Elevations - South West	Studio Coco	22 August 2025
DA204 (Rev 6)	Fence Elevation - From 32 Rivers Street	Studio Coco	22 August 2025
DA300 (Rev 6)	Proposed Section A-A	Studio Coco	22 August 2025
DA301 (Rev 6)	Proposed Section B & C	Studio Coco	22 August 2025
DA350 (Rev 6)	Sightlines - Section - Planter	Studio Coco	22 August 2025
DA600 (Rev 6)	Schedule of Finishes	Studio Coco	22 August 2025
25-5223 LO1 (Rev B)	Landscape Plan Sheet 1 of 4	Zenith Landscape Designs	19 August 2025
25-5223 LO2 (Rev B)	Landscape Plan Sheet 2 of 4	Zenith Landscape Designs	19 August 2025
25-5223 LO3 (Rev B)	Landscape Plan Sheet 3 of 4	Zenith Landscape Designs	19 August 2025
25-5223 LO4 (Rev B)	Landscape Plan Sheet 4 of 4	Zenith Landscape Designs	19 August 2025
Survey Plan (Rev A)	Hill & Blume Consulting Surveyors	8 January 2024
C00.01 (Rev G)	General Notes	Engineering Studio Civil & Structural	7 August 2025
C01.01 (Rev G)	Sediment & Erosion Control Plan	Engineering Studio Civil & Structural	7 August 2025
C01.02 (Rev G)	Sediment & Erosion Control Details	Engineering Studio Civil & Structural	7 August 2025
C02.01 (Rev G)	Stormwater Drainage Plan	Engineering Studio Civil & Structural	7 August 2025
C02.02 (Rev G)	Stormwater Details Sheet 1	Engineering Studio Civil & Structural	7 August 2025
C02.03 (Rev G)	Stormwater Details Sheet 2	Engineering Studio Civil & Structural	7 August 2025
C02.04 (Rev G)	Stormwater Details Sheet 3	Engineering Studio Civil & Structural	7 August 2025
C02.05 (Rev G)	Stormwater Details Sheet 4	Engineering Studio Civil & Structural	7 August 2025
BASIX Certificate No. 1754143S_03	NSW Department of Planning and Environment	27 August 2025
Misc 152/2025	Traffic Assessment Letter	Transport and Traffic Planning Associates	22 July 2025

2. The applicants provided the documents outlined above to the Court on 2 September 2025.

Orders

37. The Court orders that:

1. The appeal is upheld.

2. Development Application DA424/2024/1, as amended, for alterations and additions to a partly constructed two-storey dwelling house approved under Complying Development Certificate No. 24/0074/01, including conversion of a rear garage to a cabana and a new double garage at 34 Rivers Street, Bellevue Hill NSW 2023 identified as Lot 6 in Deposited Plan 87909, is determined by the grant of consent subject to the conditions contained in Annexure A.

N Targett

Commissioner of the Court

Annexure A (596 KB, pdf)

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Decision last updated: 10 September 2025