TM Woollahra Pty Ltd v Council of the Municipality of Woollahra
[2025] NSWLEC 1075
•11 February 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: TM Woollahra Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1075 Hearing dates: Conciliation conference on 10 December 2024 Date of orders: 11 February 2025 Decision date: 11 February 2025 Jurisdiction: Class 1 Before: Thorpe AC Decision: The Court orders:
(1) The appeal is upheld.
(2) The Applicant's written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 seeking a contravention of the development standard for height of buildings set out in clause 4.3(2) of Woollahra Local Environmental Plan 2014 is upheld.
(3) The Applicant's written request under clause 4.6 of Woollahra Local Environmental Plan 2014 seeking a contravention of the development standard for floor space ratio set out in clause 4.4(2) of Woollahra Local Environmental Plan 2014 is upheld.
(4) Development application DA247/2024 for the demolition, and the construction and use of a residential flat building at 1-3 Fullerton Street, Woollahra is determined by the grant of consent, subject to the conditions set out in Annexure A to this agreement.
(5) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
Catchwords: DEVELOPMENT APPEAL – residential flat development – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6, Pt 6.2
State Environmental Planning Policy (Housing) 2021, Ch 4
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6,
Woollahra Local Environmental Plan 2014, cll 4.4, 4.6, 5.10, 6.1, 6.2, Sch 5
State Environmental Planning Policy (Biodiversity and Conservation) 2021
Texts Cited: Woollahra Development Control Plan 2015
Category: Principal judgment Parties: TM Woollahra Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Solicitors:
A Gadiel (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Mills Oakley (Applicant)
Woollahra Municipal Council (Respondent)
File Number(s): 2024/340290 Publication restriction: Nil
Judgment
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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 DA247/2024 (DA) by Woollahra Municipal Council (Council).
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TM Woollahra Pty Ltd seeks consent for the demolition of existing residential flat buildings and the construction of a part five, part six-storey residential flat building comprising three (3) 2-bedroom apartments; eleven (11) 3-bedroom apartments; one (1) 4-bedroom apartment; two (2) basement levels containing 31 parking spaces; associated landscaping works and the provision of communal and private open spaces at 1-3 Fullerton Street, Woollahra, legally described as SP16668 (site).
Conciliation and agreement between the parties
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The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (Court Act), at which I presided. The conference was held on 10 December 2024.
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Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the Court 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.
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The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a note on jurisdiction that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the note together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
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The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.
Jurisdictional considerations
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As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
State Environmental Planning Policy (Resilience and Hazards) 2021
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Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The detailed site investigation prepared by Land Risk Environmental (Tab 6, s 34 agreement bundle) finds that the site is unlikely to be contaminated and is suitable for the purpose for which the development is proposed to be carried out without remediation (p 2). The parties are satisfied and I accept that the requirements of s 4.6 are met.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
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State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies as the site is located within the Sydney Harbour Catchment. Chapter 6 requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity; aquatic ecology, flooding, recreation and public access and total catchment management.
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I am satisfied on the basis of the agreement of the parties and the civil services concept design prepared by Intrax (Tab 3 of s 34 agreement bundle) that the proposal ensures that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands (s 6.7). The proposal is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); the proposal does not affect public access to and from natural waterbodies (s 6.9); and the proposal is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).
State Environmental Planning Policy (Housing) 2021
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Chapter 4 applies. I have considered the matters required by s 147, including the 'Architectural Design Report' (dated 5 July 2024, tab 8 of the Class 1 application) and ‘Design Verification Statement’ (dated 2 December 2024, tab 9 of the s 34 agreement bundle) prepared by Smart Design Studio.
Woollahra Local Environmental Plan 2014
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The site is located within Zone R3 Medium Density Residential pursuant to Woollahra Local Environmental Plan 2014 (WLEP). Residential flat development is permissible with consent.
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The parties agree and I accept that the DA is consistent with the aims of WLEP and with the objectives of the R3 zone, in that it:
will provide for the housing needs of the community within a medium density residential environment;
will contribute to the variety of housing types within a medium density residential environment;
is of a height and scale that achieves the desired future character of the neighbourhood; and
will contribute to conserving tree canopy cover.
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The proposal does not comply with the 19.5m maximum height limit applying to the land under cl 4.3 of WLEP. At its highest point, the proposed development exceeds the development standard by 4.75m (24.4%).
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Notwithstanding I am satisfied that consent should be granted as the contravention arises as a result of the irregular and artificial existing ground plane. I consider that the proposed non-compliance is minor and does not give rise to any significant adverse impacts. Considering the circumstances of the case and the written request prepared by Ethos Urban (dated 13 December 2024) lodged pursuant to cl 4.6 of WLEP, I am satisfied that:
sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the lowered ground level due to prior excavation at the site,
compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and
the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.
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The proposal does not comply with the 1.55:1 maximum floor space ratio (FSR) imposed under cl 4.4 of WLEP. The maximum permitted gross floor area permitted on the site is 2,454sqm. The proposed development exceeds this by 66m2, a 2.69% variation.
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I am satisfied that consent should be granted as the contravention arises as a result of the existing ground level and the sloping topography of the surrounding land. I consider that the proposed non-compliance is minor, does not add to the bulk, scale or density of the building, and does not give rise to any significant adverse impacts. Having regard to the circumstances of the case I am satisfied, based on the written request prepared by Ethos Urban (dated 13 December 2024) lodged pursuant to cl 4.6 of WLEP, that:
sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of prior excavation and the topography surrounding the site,
compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and
the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.
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I accept the advice of the parties that the DA complies with the other development standards under WLEP.
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Clause 5.10 applies because the site is located within the Woollahra Heritage Conservation Area (C15 WHCA) and in the vicinity of local heritage items listed in Sch 5 of WLEP. In accordance with cl 5.10, I have considered the relevant matters including the statement of heritage impact prepared by GBA Heritage dated July 2024 (Tab 13 of the Class 1 Application). The parties agree and I accept that the requirements of cl 5.10 are met.
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The Site is identified as containing Class 5 acid sulfate soils. Clause 6.1 does not apply as the proposed works do not fall within the description specified in the table in cl 6.1(2), as confirmed in the Statement of Environmental Effects.
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Clause 6.2 applies because the DA proposes excavation works on the site. Before granting consent, subs (3) requires specific matters to be taken into consideration. In accordance with cl 6.2, I have considered the relevant matters including the specialist advice on geotechnical assessment prepared by JK Geotechnics dated 31 May 2024 (tab 16 of the Class 1 application). I am satisfied that the proposed earthworks will not give rise to any adverse environmental impacts.
Other considerations
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Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg.
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The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. Twenty-six submissions were made during the exhibition period, including 14 in support of the proposed development. Council advises that all submissions have been considered and are satisfactorily addressed in the DA and conditions of consent.
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The parties also advised me that they have considered Woollahra Development Control Plan 2015 and that the proposal is generally compliant or otherwise satisfactory in their considered view.
Conclusion
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Based on the above details, 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 Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.
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In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
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The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.
Orders
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The Court orders:
The appeal is upheld.
The Applicant's written request under clause 4.6 of the Woollahra Local Environmental Plan 2014 seeking a contravention of the development standard for height of buildings set out in clause 4.3(2) of Woollahra Local Environmental Plan 2014 is upheld.
The Applicant's written request under clause 4.6 of Woollahra Local Environmental Plan 2014 seeking a contravention of the development standard for floor space ratio set out in clause 4.4(2) of Woollahra Local Environmental Plan 2014 is upheld.
Development application DA247/2024 for the demolition, and the construction and use of a residential flat building at 1-3 Fullerton Street, Woollahra is determined by the grant of consent, subject to the conditions set out in Annexure A to this agreement.
The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
……………………….
A Thorpe
Acting Commissioner of the Court
Annexure A
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Decision last updated: 11 February 2025
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