17 BPR Pty Ltd v Woollahra Municipal Council

Texts Cited: Woollahra Municipal Council, Woollahra Community Participation Plan (26 June 2023)
Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: 17 BPR Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Finn Roache Lawyers (Respondent)

File Number(s): 2025/300012

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 applicant against the respondent’s deemed refusal of the applicant’s development application DA 205/2025/1 (Development Application). The Development Application sought consent for the demolition of an existing three storey residential flat building (RFB) and construction of a five storey RFB containing nine units and three excavated levels of car parking and associated works on land identified as Strata Plan 39563, known as 17 Bellevue Park Road, 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 D****evelopment A****pplication

3. The Development Application was lodged with the respondent on 18 June 2025.

4. The Development Application was publicly notified between 9 and 24 July 2025 in accordance with the Woollahra Community Participation Plan. Four submissions were received in response to the notification.

5. On 6 August 2025, the proceedings were commenced in relation to the (then) deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. On 21 August 2025, the Local Planning Panel refused the Development Application.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 25 February 2026. Following this, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A final signed s 34 agreement was provided to the Court on 19 March 2026 following the applicant agreeing to amend the Development Application (Amended Development Application).

8. The signed s 34 agreement is supported by an agreed jurisdictional statement. The agreed amendments to the Development Application relevantly include:

9. removal of the proposed top storey (and associated floor space) and replacement with roof top terraces;

10. minor expansion of the floor plate to the east; and

11. provision of additional information and root mapping to demonstrate that there will be no impact to the large Port Jackson tree roots.

12. 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

10. 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.

Owners consent

11. The registered proprietors of the Subject Land provided owners consent to the lodgement of the Development Application (see Class 1 Application, tabs 1 and 2).

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated; (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

13. I accept the parties’ submission that the requirements of s 4.6 of the RH SEPP have been considered and that the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. In determining the Amended Development Application, I have considered the matters set out in s 4.6(1) of the RH SEPP and have had regard to the fact that the Subject Land has a longstanding history of residential use with no known contaminating activities.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application because the Subject Land is located within the Sydney Harbour Catchment. The following documents provide supporting information for consideration of this development under general controls for development in this catchment set out in Pt 6.2, Div 2:

15. Stormwater Plans prepared by Smart Structures Australia dated 27 January 2026 (Stormwater Plans);

16. analysis set out in the Statement of Environmental Effects prepared by GSA Planning dated May 2025 (SEE) (see p 16); and

17. agreed conditions of consent.

18. Having regard to the above documents, I confirm that I have considered, and am satisfied of, the matters set out in Ch 6 that are relevant to the proposal.

State Environmental Planning Policy (Sustainable Buildings) 2022

16. The Amended Development Application is accompanied by BASIX Certificate No. 1796844M_02 dated 30 January 2026 in compliance with the relevant requirements under the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Housing*) 2021*

17. The parties agree that Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Amended Development Application as the proposed development relates to residential apartment development under s 144 of the Housing SEPP.

18. Section 145(2) of the Housing SEPP requires the consent authority to refer the application to the design review panel for the local government area in which the development will be carried out for advice on the quality of the design of the development. The parties confirm that a design review panel does not exist in the Woollahra local government area.

19. Section 147 of the Housing SEPP requires the consent authority to have considered the matters listed in s 147(1) of the Housing SEPP (which includes the Apartment Design Guide (ADG)) before granting consent.

20. The parties agree, and I accept, that the Amended Development Application is satisfactory in light of the principles set out in Sch 9 of the Housing SEPP and the ADG, having regard to the SEPP No 65 Verification Statement prepared by MHN Design Union dated 29 January 2026 which address the requirements of s 147(1) of the Housing SEPP.

21. Section 148 of the Housing SEPP sets out development standards that, if complied with, prevent the consent authority from requiring more onerous standards. The parties agree, and I accept, that the proposal complies with these minimum standards.

Woollahra L**ocal Environmental Plan 201**4

22. The Subject Land is zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). Accordingly, RFBs are permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

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

To provide a variety of housing types within a medium density residential environment.

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

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.

23. Pursuant to cl 4.1A of the WLEP relevantly relating to minimum lot sizes for residential flat buildings, the Subject Land is subject to a minimum lot size control of 700 m2. The Subject Land has a total area of 743.3 m2 and therefore complies with this requirement.

24. Pursuant to cl 4.3 of the WLEP relating to height of buildings, a maximum height of 13.5 m applies to the Subject Land (Height Standard). The Amended Development Application proposes a maximum height of 16.73 m and therefore does not comply with this provision.

25. The Amended Development Application is accompanied by a cl 4.6 variation request prepared by GSA Planning dated January 2026 (Height Request). The Height Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the WLEP and concludes that:

26. Compliance with the Height Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the height of building objectives set out in cl 4.3 of the WLEP.

27. There are sufficient environmental planning grounds to justify the contravention because:

(a) The building will appear compliant with the Height Standard when viewed from the street. (b) The non-compliance is to facilitate the provision of equitable access to the communal rooftop space. (c) Despite the exceedance, the amenity of neighbouring dwellings will be maintained in respect of privacy, solar access and views. The portion of the built form above the Height Standard has no significant additional impact on the amenity of neighbouring properties.

26. In respect of the Height Request, I am satisfied that the applicant has demonstrated that compliance with the Height Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Height Standard in accordance with the requirements under cl 4.6(3) of the WLEP.

27. Pursuant to cl 4.4 of the WLEP relating to floor space ratio (FSR), a maximum FSR development standard of 1.3:1 applies to the Subject Land. The parties agree, and I accept, that the Amended Development Application complies with this standard.

28. Pursuant to cl 6.1 of the WLEP relating to acid sulfate soils, the parties agree, and I accept that, the Subject Land is identified as Class 5 land however the requirements of cl 6.1(3) are not enlivened as the Amended Development Application does not propose any works identified at cl 6.1(2) of the WLEP.

29. Pursuant to cl 6.2 of the WLEP relating to earthworks, the consent authority must consider the matters specified in cl 6.2(3) when deciding whether to grant consent for earthworks. The parties agree, and I accept, that the matters listed in cl 6.2(3) have been considered having regard to the:

30. Geotechnical and Hydrogeological Investigation Report, prepared by JK Geotechnics dated 19 May 2025;

31. Letter from JK Geotechnics dated 11 June 2025; and

32. agreed conditions of consent.

33. Pursuant to cl 6.9 of the WLEP relating to tree canopy, development consent must not be granted to development unless the consent authority has considered the matters set out at cl 6.9(3). The parties agree, and I accept that, the matters in cl 6.9(3) have been considered having regard to the:

34. final architectural plans;

35. Arboricultural Assessment Report prepared by Jacksons Nature Works dated 22 May 2025;

36. Letter prepared by Jacksons Nature Works dated 4 August 2025; and

37. updated Landscape Plans prepared by Conzept Landscape Architects dated January 2026.

Woollahra Development C**ontrol Plan 2015

31. The parties agree that the Amended Development Application is capable of approval having regard to the relevant provisions of the Woollahra Development Control Plan 2015 (see also SEE pp 17-25).

Remaining matters under s 4.15(1) of the EPA Act

32. The matters set out in s 4.15(1)(b), (c) and (e) of the EPA Act are addressed in the SEE (see pp 26-34).

33. As set out at [4] above, for the purposes of s 4.15(d) of the EPA Act, the Development Application was publicly notified between 9 and 24 July 2025 in accordance with the Woollahra Community Participation Plan. Four submissions were received in response to the notification raising concerns including:

34. overshadowing to the adjoining RFB at 174 Old South Head Road;

35. excessive height;

36. geotechnical and construction impacts; and

37. stormwater management.

38. In addition, the Court was provided with further written submissions dated 16 February and 12 and 13 March 2026 raising concerns largely consistent with the above as well as:

39. geological precedent and physical damage to neighbouring properties including through use of piling;

40. the need to implement appropriate conditions including the requirement for dilapidation reports;

41. lack of notice to the amended proposal; and

42. impacts to local fauna and flora.

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

Conclusion

36. 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.

37. 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.

38. The Court notes that the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application No DA205/2025/1 to rely on the documents listed below:

| Reference | Description | Author | Dates | | 0000 Rev D 1003 Rev D 1004 Rev C 2001 Rev C 2002 Rev C 2003 Rev D 2004 Rev D 2005 Rev D 2006 Rev D 2007 Rev D 2008 Rev D 2009 Rev D 3001 Rev D 3002 Rev D 3003 Rev D 4001 Rev D 4002 Rev D 4003 Rev D 4004 Rev D 6009 Rev D | Architectural drawings | MHNDUNION | 29/01/2026 | | LP-01 Issue B LP-03 Issue B LP-04 Issue B LP-05 Issue B LP-06 Issue B LP-07 Issue B LP-08 Issue B | Landscape plans | Conzept | 30/01/2026 | | 250137 D00-B D01-C D02-D D03-E D04-E D08-A D09-C D10-C D15-D D16-D | Stormwater Management Plan | SMART Structures Australia | 27/01/26 | | BASIX Certificate No.: 1796844M_02 | BASIX Certificate | Credwell Energy | 30 January 2026 | | | Arboricultural Root Map Report | Jacksons Nature Works | 04/08/2025 | | | Height Clause 4.6 | GSA Planning | January 2026 | | | Design Verification Statement | MHNDUNION | 29 January 2026 |

39. The above documents were provided to the Court on 12 March 2026.

Orders

40. The Court orders that:

41. The appeal is upheld.

42. Development Application No. DA2025/2025/1 (as amended) for the demolition of an existing residential flat building and the construction of a five storey residential flat building containing eight units and three excavated basement levels containing 19 car spaces, at 17 Bellevue Park Road, Bellevue Hill, is determined by the grant of consent subject to the conditions in Annexure A.

43. The applicant is ordered to pay the costs thrown away by the respondent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

N Targett

Commissioner of the Court

**********

Annexure A (688 KB, pdf)