Wheeldon v Woollahra Municipal Council

[2025] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wheeldon v Woollahra Municipal Council [2025] NSWLEC 1176

Hearing dates:

Conciliation conference on 6 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 226/2023/1 for the demolition of the existing house and garage and construction of a new dwelling, swimming pool and landscaping, at 11A Burrabirra Avenue, Vaucluse NSW 2030, also identified as Lot 1 in Deposited Plan 534559, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – 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, s 34

Environmental Planning and Assessment Regulation 2021, s 38

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

Woollahra Local Environmental Plan 2014, cll 4.3, 6.1, 6.2

Category:

Principal judgment

Parties:

Susan Wheeldon (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
J Farrell (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

2024/364616

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA-226/2023/1 for demolition of the existing house and garage and construction of a new dwelling, swimming pool and landscaping at 11A Burrabirra Avenue, Vaucluse by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 March 2025. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. 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. The plans and documents comprising the amended application are listed below:

Reference	Description	Author/Drawn	Date(s)
DA-001 DA-002 DA-003 DA-004 DA-004b DA-100 DA-101 DA-102 DA-103 DA-200 DA-201 DA-202 DA-301 DA-302 DA303 DA304 All Revision B	Architectural Plans	Atelier Lux	4/03/2025
Stormwater Plans S101 S200 S201 S202 S203 S300 S301 S302 S303 All Revision 03	Stormwater Plans	De Boke	5/03/2025
202502_11A_ Burrabirra_A0.0	Landscape Plan	Ben Kaye Garden Design	February 2025
Aboriginal Heritage Impact Assessment	Associates Archaeology & Heritage	August 2023
Project 224042.00	Geotechnical Report	Douglas Partners	September 2023
BASIX Certificate No.1403376S_03	Basix Certificate	Frys Building Consultancy Pty Ltd	6 March 2025
Nathers Certificate No.0011757846	Nathers Certificate	Frys Building Consultancy Pty Ltd	6 March 2025
Basix & Thermal Commitment	Frys Building Consultancy Pty Ltd	28/02/25
Clause 6.6 Report	De Boke	5 March 2025

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

6. The site is zoned R2 Low Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the zone, to which regard must be had, are:

• 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.

7. The proposal complies with the height of buildings development standard for the site of 9.5m under cl 4.3 of LEP 2014.

8. In relation to cl 6.1 Acid Sulfate Soils of LEP 2014, the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage. Clause 6.1 requires development consent for the carrying out of works on Class 5 land within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD, and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land. The proposal is consistent with the provisions of cl 6.1, pursuant to the Acid Sulfate Soils map 005:

• the Site is located within a Class 5 area, as specified in the Acid Sulfate Soils Map to the WLEP; and

• the subject works are not works within 500m of adjacent Class 1, 2, 3 or 4 land below 5m AHD and by which the watertable is likely to be lowered below 1m AHD; and,

• a preliminary assessment is therefore not required and there is unlikely to be any acid sulfate affectation.

9. Clause 6.2 Earthworks of LEP 2014 requires the consent authority to consider various matters under subcl 6.2(3) in deciding whether to grant development consent for earthworks. The matters arising under cl 6.2(3) have been considered by a Geotechnical Report prepared by Douglas Partners dated 5 September 2023. The Council submitted that the assessment of the proposal concluded the following:

• The proposal involves excavation with a maximum depth of about 2 metres from the existing ground surface for the proposed basement.

• The report identified the subsurface conditions as:

•  depth of natural sand with various density to a termination depth of 0.55m, 0.25m and 0.2m in BH1, BH2 and BH3 respectively;

•  sandstone bedrock was inferred beneath the natural sand at depth ranging between 0.2m to 0.55m; and

•  groundwater was not observed during the investigation.

• The report made comments and recommendations regarding shoring and support, vibration and monitoring, excavation method and further geotechnical input.

10. The Council submitted that the Infrastructure and Sustainability Services Division has no objections to the proposed excavation on technical grounds and the relevant consideration of matters under subcl 6.2(3) has occurred.

Conclusion

11. I have considered the submissions made by the Council in the Jurisdictional Statement lodged with the Court on 6 March 2025 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

12. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 226/2023/1 for the demolition of the existing house and garage and construction of a new dwelling, swimming pool and landscaping, at 11A Burrabirra Avenue, Vaucluse NSW 2030, also identified as Lot 1 in Deposited Plan 534559, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (640063, pdf)

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Decision last updated: 31 March 2025