2 Bay Street Pty Limited v Council of the Municipality of Woollahra

Land and Environment Court (NSW)|2024-11-22

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the Municipality of Woollahra (Council) of Development Application No. DA141/2024 (the DA) for a change of use from an approved commercial development (under DA280/2022, 2 Bay Street Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1222 and as modified by DA280/2022/3 on 15 August 2024) to shop top housing to accommodate a single residential apartment at the top floor with associated works including new roof terrace and swimming pool on land legally known as Lot 1 DP1286687 at 294-298 New South Head Road and 2-10 Bay Street (now known as 2 Bay Street) Double Bay (the site).

Recent History of Development Consents for the site

The Respondent provided a detailed summary of the recent (post 2021) history of development consents for the site. The key milestones are: 1. On 25 February 2021, development application (DA No. 69/2021) was lodged with Council for the demolition of the existing buildings and construction of a shop-top housing development comprising residential and commercial uses at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay; 2. On 17 November 2021, the development application was approved in the Land and Environment Court (LEC) (Loftex Commercial Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1697) subject to conditions. The proposal resulted in an approved building height of 19.5m. Subsequently, a number of s 4.56 (EPA Act) modification applications were submitted and approved; 3. On 7 July 2022, development application (DA No. 280/2022) was submitted to Council for demolition of existing buildings and construction of a new five storey commercial building with basement parking at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay; 4. On 11 May 2023, the application was approved by the LEC with a maximum height of 20.15m and combined FSR of 2.77:1; 5. On 27 July 2023, a s 4.56 (EPA Act) modification application to DA No. 280/2022 was submitted to Council to modify conditions relating to the deferred commencement and staging of construction certificates at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. On 16 August 2023, the modification application was approved by Council; 6. On 31 October 2023, a development application (DA No. 403/2023) was submitted with Council for Subdivision (Strata) of Lot 1 in DP1286687 into 5 lots at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. On 14 December 2023, the development application was approved by Council; and 7. On 16 February 2024, a further section 4.56 modification application to DA No. 280/2022 was submitted with to Council for internal and external modifications to approved commercial development at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. This modification application was approved by the Woollahra Local Planning Panel on 15 August 2024.

Development Application DA141/2024

On 1 May 2024, Development Application DA141/2024 (under DA No. 280/2022) (the DA) was submitted to Council seeking "Change of use from an approved new commercial development (under DA280/2022, NSWLEC 1222) to a shop top housing development to accommodate a single residential apartment at the top floor with associated works including new roof terrace and swimming pool."
The parties advise that the DA relies on those components of the commercial development which were approved under DA280/2022, in particular the following approved elements: 1. Three (3) levels of basement car parking (93 spaces) and associated motorcycle parking (10 spaces), bicycle parking (60 spaces), lifts x3, plant rooms, fire stairs and garbage areas; 2. 1031m2 of retail gross floor area (GFA) allocated to three (3) retail tenancies at Ground Lower, Ground Upper and Level 1; 3. 3816m2 of commercial GFA allocated to Ground Upper, Level 1, Level 2 and Level 3; 4. Vertical circulation space including: 1. 3x internal lifts providing access up to and from Level 4; 2. Fire Stair 1 providing access up to and from Level 4 and 3. Fire Stair 2 providing access up to and from Level 3. 1. Voids/ducts for the provision of services.
In addition to the above elements, the parties advise that the DA involves the following elements: 1. New residential garbage area at Ground Lower; 2. 611m2 of residential Gross Floor Area (GFA) allocated to one (1) single residential unit at Level 4, comprising: four (4) bedrooms and associated ensuites; library/drawing room; family room; formal dining and great room with associated bar/cellar; open plan kitchen/family dining/living; external private open space area at Level 4, including a swimming pool and WC; and roof terrace with associated bar, spa, sauna, planters and WC 3. Mechanical plant, skylights and voids added to roof; 4. Amendments to approved fenestration at the north and west elevations at Level 4; 5. New windows at the south and east elevations at Level 4; and 6. New planters added to south and east elevations at Level 4.

Conciliation Conference

The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 October 2024. I presided over the conciliation conference, which commenced with an on-site view, and was attended by a number of submitters. Three submitters made verbal submissions to the Court. An inspection of the submitters' properties was made during the conciliation conference to view the current outlook from these properties over the site.
The s 34 conciliation conference was adjourned to 8 November 2024 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned a number of times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).
After the conciliation conference, and the assessment by the Respondent of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise that the contentions raised by the Respondent have been adequately addressed through the amended plans and conditions imposed on the development consent.
The key changes made in the amended DA arising from the conciliation conference are listed as follows: 1. Changes to the height of the building: 1. At the northern portion of the site, the height will increase to 25.733m, associated with the sauna and WC structure; 2. At the southern portion of the site, the maximum height will increase to 27.879m, related to the required acoustic screening; and 3. The works on the Level 5 roof terrace largely remain below the approved plant RL of 27.12 AHD; 1. Addition of two (2) car spaces designated 'residential'; 2. Change of solid balustrade to western side of the external stair to metal balustrade; 3. Change location of the sauna from rooftop top level 4 terrace (combined with WC); 4. Removal of WC from the roof; 5. Addition of plants, planters and louvre on the roof; and 6. Addition of AC acoustic screen.
A signed s 34 agreement with Annexure A (Conditions) and Annexure B (Index to Amended Application) was filed with the Court on 22 November 2024, with amended plans and additional material (the amended DA) as agreed between the parties. An updated s 34 agreement was filed with the Court on 28 February 2025. The s 34 agreement is supported by the agreed statement of jurisdictional prerequisites submitted by 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. 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.
The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA (as amended).
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Owner's consent

The Respondent advises that Owner's consent was provided to the lodgement of the DA.

Community Participation (Sch 1, Div 2, s 7(1))

The DA was advertised between 22 May 2024 and 6 June 2024. Fourteen submissions were received.

Conditions

The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Woollahra Local Environmental Plan 2014

The Woollahra Local Environmental Plan 2014 (the LEP) applies to the site and to the proposed development, as follows: 1. The site is zoned E1 - Local Centre pursuant to cl 2.2 of the LEP. Shop-top housing is permissible with consent in the E1 zone; 2. Pursuant to cl 2.3 of the LEP the Court is required to have regard to the zone objectives. The parties advise that they agree that the amended DA is consistent with the zone objectives of the E1 zone in the LEP. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out; 3. Pursuant to cl 4.3 of the LEP the maximum height of buildings (HoB) on the site is 14.7m; and 1. The parties advise that the most recent approval for the site (DA 280/2022/3 - s 4.56 approved on 15 August 2024) allows for a height exceeding this limit, with a maximum building height of 20.65m at the northern portion of the site and a maximum roof level (RL) of 27.12 AHD at the southern end. This approved development is currently underway; 2. The parties further advise that proposed design changes in the amended DA will result in the following changes to building height: 1. Northern portion of the site: A building height of 25.733m, associated with a sauna and WC structure, which remains below the approved maximum RL of 27.12 AHD; 2. Southern portion of the site: A maximum height of 27.879m, primarily due to the acoustic screening; and 3. Level 5 roof terrace: Most of the works are below the approved plant RL, with the exception of plant equipment at RL 27.27 AHD and necessary acoustic screening at RL 27.87 AHD; 1. The new maximum height represents, in the view of the parties, a relatively minor increase of 1.65m compared to the previously approved height and occurs at the northern portion of the Level 4 roof terrace, still remaining below the approved maximum RL for the building. The parties advise that these height changes are a result of ongoing excavation work on the site; 2. An application to vary the HoB standard under cl 4.6 of the LEP prepared by GSA Planning dated November 2024 was submitted with the amended DA. The parties advise that this statement demonstrates that compliance with the HoB standard is unreasonable or unnecessary in the circumstances of this case and that there are sufficient environmental planning grounds to justify contravening the development standard; 3. I am satisfied that the Applicant's amended cl 4.6 written request is well founded and that the variation to the HoB standard is acceptable noting that: 1. There is an existing development approval on the site which includes an exceedance of the HoB standard; 2. The proposed development's height is consistent with the built form in the Double Bay area. Surrounding developments are an eclectic mix of residential flat buildings, commercial and mixed use developments that vary between two to six storeys; and 3. There are a number of recently approved HoB exceedances in the immediate area as defined by the Bay Street (South) precinct; 1. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant's written request, which I adopt; 2. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons: 1. The existing approved development breaches the height limit on the site. The proposed changes associated with the roof top residential unit are within the approved building envelope and mitigate impacts of the proposal on surrounding development; 2. In particular, the proposed new works above the HoB development standard, in comparison with the approved development, will minimise impacts on views, overshadowing, privacy and visual intrusion to neighbouring development and the public domain; and 3. The proposed works will allow the building to continue to present as a predominantly four storey development, with recessed upper levels consistent with the context; 1. Approval of the proposed development will be in the public interest for the reasons provided above (at [17(3)(g)] above), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the E1 Local Centre zoning of the subject site, for reasons provided within the Applicant's written request, which I also adopt; 1. Pursuant to cl 4.4 of the LEP the site is subject to a maximum Floor Space Ratio (FSR) of 2.5:1 for Nos. 294-296 New South Head Road and Nos. 2-10 Bay Street, and a maximum FSR of 3:1 for No. 298 New South Head Road. The Applicant submitted a cl 4.6 written request for the amended DA prepared by GSA Planning dated November 2024 to vary the FSR standard under cl 4.6, addressing the non-compliance with the FSR limit; and 1. The parties advise that proposed development includes additional Gross Floor Area (GFA) above the standard FSR, which is partially due to the existing approval on the site (DA280/2022/3 - s 4.56 Approval), where FSR's of 2.81:1 and 3.25:1 have been approved for the two portions of the site. This increase in FSR was necessitated by the greater floorplates required for the retail and commercial levels; 2. The approved GFA is 5,411m2 across the combined site. The proposed GFA in the amended DA is for 5,455m2 across the combined site; 3. At Level 4, the additional floorspace is located away from site boundaries and the Bay Street building edge, ensuring that the development does not introduce undue bulk or scale into the streetscape. No additional GFA is proposed at the Level 5 roof terrace; 4. The parties submit that the proposed works are largely contained within the approved envelope of the commercial development, which is already under construction on the site. The new areas of GFA that extend beyond the approved envelope are set back from the site boundaries or building edges to ensure the overall bulk and scale of the development remain consistent with the approved design. Therefore, despite the slight increase in FSR, the development will not significantly alter the approved bulk or appearance; 5. The parties consider that the Court can be satisfied of those matters required to be considered under cl 4.6 of the WLEP in order to grant the variation to the FSR development standard; 6. I am satisfied that the Applicant's amended cl 4.6 written request is well founded and that the variation to the FSR standard is acceptable noting that: 1. There is an existing approval on the site, and the proposed development will result in a building envelope similar to that approved, designed to ensure that the additional internal space will not be readily discernible or bulky from the surrounding public domain and private properties; 2. The proposal delivers the desired density and mixed use character of the area and provides a bulk and scale that is generally consistent with that envisaged by the controls; and 3. Recent developments within the Bay Street (South) precinct have approved FSR's that are greater than the FSR development standard; 1. I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the FSR development standard notwithstanding the FSR exceedance for the reasons provided within the Applicant's written request, which I adopt; 2. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons: 1. The minor increase in FSR is essentially accommodated within the already approved built form envelope for the site; 2. The proposed development will present as a four storey development, with stepped back fifth level, consistent with the context of the Bay Street (South) precinct; and 3. The proposed development will continue to provide a strong built form that addresses the corner site, with design changes to suit the residential use now proposed; 1. Approval of the proposed development will be in the public interest for the reasons provided above (at [17(4)(h)] above), and because the proposed development is consistent with the objectives for the FSR development standard and for development within the E1 Local Centre zoning of the subject site, for reasons provided within the Applicant's written request, which I also adopt; 1. Clause 5.10 of the LEP relates to Heritage. The site is located opposite state heritage item 'Gardens to the former "Overthorpe" (I 206); and local heritage item 'Vegetation associated with the gardens of the former house "Overthorpe"' (I 207). The parties advise that the proposed alterations and additions including change of use to the approved development application will not impact the aforementioned heritage items (referring to Statement and Environmental Effects prepared by GSA Planning dated April 2024); 2. Clause 5.21 of the LEP relates to Flood Planning. The parties advise that the site is located within the flood planning area. Given the nature of the proposal for a change of use and associated alterations and additions to the approved commercial development which will occur at Ground Lower (internal bin store), Level 4, and Level 5, the parties confirm that the previously approved flood mitigation measures will remain in place; 3. Clause 6.1 of the LEP relates to acid sulfate soils. The parties advise that the site is mapped as Class 5 Land. The parties advise that the DA relates to the changes at Lower Ground (addition of bin store only), Levels 4 and 5 and proposes no excavation, therefore, the provisions of cl 6.1 are not applicable.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

The parties advise that the site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP); and that 1. An assessment of the relevant clauses of the Biodiversity SEPP and matters contained at Ch 6 of the Biodiversity SEPP have been undertaken in the Statement of Environmental Effects; and 2. The parties agree that the Court can be satisfied that the development is consistent with Ch 6 of the Biodiversity SEPP.

A State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties advise that a Preliminary Site Investigation, prepared by Douglas Partners, submitted under approved development application No. DA280/2022, 2 Bay Street Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1222 confirmed that the site has historically been used for residential and various commercial purposes and is unlikely to be contaminated. Furthermore, no excavation is proposed as part of the works associated with the amended DA.
The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into effect. The parties advise that: 1. A BASIX Certificate and BASIX Assessment Report have been prepared which show the proposed development can satisfy the relevant energy and water standards contained in Sch 1 of the Sustainable Buildings SEPP; and 2. The amendments made to the proposed development since the BASIX certificate was issued do not result in the development differing materially from the description contained in the BASIX certificate, accordingly an amended BASIX Certificate is not required in accordance with s 37 of the EPA Regulation.

Woollahra Development Control Plan 2015

The parties advise that the provisions of the DCP that are of relevance have been taken into account in assessing the amended DA, and that the parties agree that the amended plans demonstrate a satisfactory planning outcome when measured against the applicable zoning objectives and WDCP controls and objectives.

Conclusion

Having considered the advice of the parties provided above at [14]-[23], I am satisfied that: 1. the Applicant's amended DA can be approved having regard to the matters in s 4.15(1)(b) - (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and 3. approval of the proposed development is in the public interest.
Further, 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 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.
The Court notes: 1. The Council of the Municipality of Woollahra, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No. DA141/2024 made on 22 November 2024 to rely on the documents specified below: TAB DOCUMENT DATE
Amended Clause 4.6 Exceptions to Development Standards - FSR, prepared by GSA Planning November 2024
Amended Clause 4.6 Exceptions to Development Standards - Height of Buildings, prepared by GSA Planning November 2024
Additional View Impact Analysis (Photomontages) prepared by AE Design: November 2024 • Unit 5 and 7 New South Head Road Amended View Impact Analysis (Photomontages) prepared by AE Design:
• Lower Floor, Unit 14 and 32 - 337 New South Head Road November 2024 • Unit 3, 12 and 14 - 290 New South Head Road • Wireframes Amended Architectural Plans, prepared by Lawton Hurley:
- DA00 - Site + Site Analysis Plan - Rev B
- DA01 - Basement 2 Plan - Rev B
- DA02 - Basement 1 Plan - Rev B
- DA03 - Ground Lower Plan - Rev B
- DA04 - Ground Upper Plan - Rev B
- DA05 - Level 1 Plan - Rev B
- DA06 - Level 2 Plan - Rev B
- DA07 - Level 3 Plan - Rev B
- DA08 - Level 4 Plan - Rev B October 2024
- DA09 - Roof Plan - Rev B (Rev B)
- DA11 - East Elevation - Rev B November 2024
- DA12 - North Elevation - Rev B (Rev C)
- DA13 - West Elevation - Rev B
- DA14 - South Elevation - Rev B
- DA15 - Section Looking West - Rev C
- DA15.1 - Section looking West Without Dimensions - Rev B
- DA16 - Section Looking North - Rev B
- DA18 - GFA Plans - Rev B
- DA19 - Shadow Diagrams - Rev B
- DA20 - Proposed Views from the Sun 1 - Rev B
- DA21 - Proposed Views from the Sun 2 - Rev B
- DA22 - LEP Envelope Study- Rev B Slab Survey, prepared by Trig Surveys:
• DN - CC120 - Basement 2 (Pour 1) Slab As-Built - Rev A - 10 July 2024 10 July 2024 • DN - CC120 - Basement 2 (Pour 2) Slab As-Built - Rev A - 10 July 2024 (Rev A) • DN - CC120 - Basement 2 (Pour 3 ) Slab As-Built - Rev A - 10 July 2024

The amended DA was filed with the Court on 22 November 2024. 2. BASIX Certificate No 1744989M prepared by IGS (integrated Group Services) issued 24 April 2024 was submitted with the DA.

Orders

The Court orders that: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $2,000, to be paid within 28 days of the date of this order. 2. The appeal is upheld. 3. The request pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 to vary the development standard for height of building contained within cl 4.3 thereof, as prepared by GSA Planning dated November 2024, is upheld. 4. The request pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 to vary the development standard for floor space ratio contained within cl 4.4 thereof, as prepared by GSA Planning dated November 2024, is upheld. 5. Development consent is granted to development application No DA141/2924, as amended, for a change of use from approved new commercial development (under DA280/2022, 2 Bay Street Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1222) to shop top housing to accommodate a single residential apartment at the top floor with associated works including new roof terrace and swimming pool at 2 Bay Street Double Bay, NSW, legally known as Lot 1 DP1286687, subject to the conditions of consent in Annexure A.

Acting Commissioner of the Court Annexure A Annexure B

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2025

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (2)