399 NSHR Developments Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.2
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119
Woollahra Local Environmental Plan 2014, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2

Category: Principal judgment

Parties: 399 NSHR Developments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/138019

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by 399 NSHR Developments Pty Ltd (the Applicant), against the deemed refusal of Development Application DA2024/508/1 (the DA) by Woollahra Municipal Council (the Respondent).

2. At the date of its lodgement on 14 January 2025, the DA sought consent for the demolition of existing buildings and construction of a new six-storey commercial building with a two-level basement, at 393-395 and 397-399 New South Head Road, Double Bay (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 8 August, 1 September, and 9 and 29 October 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of the proposed exceedance of the floor space ratio (FSR) and height of building development standards, associated impacts of building form, bulk and scale upon the character and desired future character of this part of Double Bay, traffic impacts including exacerbation of intersection congestion, and impacts upon the Respondent’s public infrastructure amongst other contentions.

6. Agreed design amendments have been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the number of storeys from six to five, to amend the upper level front and rear setbacks to New South Head Road and Kiaora Lane respectively. The extent of trafficable rooftop terrace has been reduced and centralised within the building footprint and the building core has been consolidated and minimised to reduce building mass and its visibility from public vantage points. The public domain interfaces have been improved along Kiaora Lane to improve pedestrian comfort and street level activation. A publicly accessible link has been introduced to connect the primary street to the rear lane. A northern side setback has been introduced to preserve amenity to the neighbouring property’s existing side windows. Other issues such as hydrogeology, stormwater, flooding, acoustic privacy and traffic modelling have been resolved by the provision of additional information.

7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application and amended DA accompanying this matter.

10. The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy and Community Participation Plan between 15 February and 7 March 2025. A total of five submissions were received by the Respondent raising concerns with the proposal, including in summary:

11. Loss of natural light and ventilation to the northern neighbouring property.

12. Noise and vibration concerns resulting from the construction phase and ongoing operation of the new development.

13. Loss of advertising exposure to the western wall of the northern neighbouring property.

14. Pedestrian safety along Kiaora Lane during demolition and excavation, and impaired ability to access parking spaces associated with the neighbouring property.

15. Proposed building height and bulk, which does not conform with the Respondent’s development controls and is inconsistent with the neighbourhood character.

16. Proposed building height and FSR exceedances, which create an undesirable precedent.

17. The Respondent’s draft Double Bay Strategy should not be relied upon to support the proposal given it has yet to result in amendments to the relevant planning controls.

18. View loss impacts upon nearby properties in Double Bay, including to residents to the southwest beyond Manning Road.

19. The proposed extent of excavation is risky in a flood prone area characterised by a shallow water table and may result in damage to surrounding properties.

20. Traffic generation close to a pedestrianised lane and loss of parking.

21. Potential contamination, hydrogeological and geotechnical impacts.

22. The presence of services on the adjacent site boundary, which may be affected by the proposed development, and which may result in constrained access and maintenance.

23. At the commencement of the conciliation conference, at the site on the morning of 8 August 2025, two affected local residents addressed the Court to restate their concerns, and the Court visited a number of public vantage points to directly observe the relationship between the site and neighbouring dwellings.

24. The parties agree, and I am satisfied, that the amended DA and conditions of consent have been finalised giving appropriate consideration to matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

25. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the WLEP, the site is zoned E1 Local Centre. The amended DA - characterised as commercial development - is permissible with consent within the E1 zone.

26. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the E1 Local Centre zone objectives.

27. Pursuant to cl 4.3 of the WLEP - Height of buildings - the site benefits from a development standard for building height of 18.1m. The amended DA proposes a maximum height of building of 23.32m, which exceeds the development standard by 5.22m or approximately 28.8%.

28. Clause 4.6(3) of the WLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

29. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for height of building, prepared by GSA Planning and dated October 2025.

30. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

31. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

32. The amended DA generally presents to New South Head Road as a five-storey commercial building with the uppermost floor set back from the primary street frontage, which is consistent and compatible with nearby development and recent approvals.

33. In a similar way, the amended DA also presents as a five-storey commercial building with the uppermost three levels set back from Kiaora Lane at the rear of the site, which is agreed to represent an appropriate building scale for this secondary pedestrian priority laneway.

34. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

35. The area of the building height exceedance is generally associated with the building core and lift overrun, which is centrally located within the site and has been consolidated and oriented to minimise its visibility from public vantage points

36. The relevant objectives of the WLEP E1 Local Centre land use zone include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the Respondent’s strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area; to ensure development is of a height and scale that achieves the desired future character of the local centre; to encourage development that is compatible with the local centre’s position in the centres hierarchy; to ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces; to maximise public transport patronage and encourage walking and cycling; and to encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates. I am satisfied the amended DA is consistent with these objectives.

37. The relevant objectives of cl 4.3 of the WLEP - Height of buildings - include to establish building heights that are consistent with the desired future character of the neighbourhood; to establish a transition in scale between zones to protect local amenity; to minimise the loss of solar access to existing buildings and open space; to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion; and to protect the amenity of the public domain by providing public views of the harbour and surrounding areas. I am satisfied the amended DA meets these objectives.

38. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant height of building development standard, and I find to uphold the written request.

39. Pursuant to cl 4.4 of the WLEP - FSR - the site benefits from a development standard for FSR of 2.5:1. The amended DA proposes a maximum FSR of 3.64:1, which exceeds the development standard by 1,307sqm of gross floor area (GFA) or approximately 45.78%.

40. Similar to the issue of building height, cl 4.6(3) of the WLEP requires the consent authority (the Court) to be satisfied the Applicant has demonstrated that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

41. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for FSR, again prepared by GSA Planning and dated October 2025.

42. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the FSR development standard for the following reasons:

43. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

44. The amended DA generally presents to New South Head Road as a five-storey commercial building with the uppermost floor set back from the primary street frontage, which is consistent and compatible with nearby development and recent approvals.

45. The amended DA also presents as a five-storey commercial building with the uppermost three levels set back from Kiaora Lane at the rear of the site, which is agreed to represent an appropriate building scale for this secondary pedestrian priority laneway.

46. The proposed FSR exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

47. As noted earlier in this judgment, I am satisfied the amended DA is consistent with the relevant objectives of the WLEP E1 Local Centre land use zone.

48. Additionally, the relevant objective of cl 4.4 of the WLEP - FSR - is to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale. I am satisfied the amended DA meets this objective.

49. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

50. The parties agree, and I am satisfied, that all remaining principal development standards of the WLEP have been met by the amended DA.

51. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area (HCA).

52. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is situated within a flood planning area. The amended DA is supported by a Flood Risk Management Assessment, prepared by Catchment Simulation Solutions, dated 13 November 2024, and by a Stormwater Management Plan prepared by Integrated Group Services, dated 3 September 2025. I am satisfied that the amended DA satisfactorily addresses those matters of consideration set out at cl 5.21(2) and (3) of the WLEP.

53. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is situated within a Class 2 area as mapped in the WLEP. The amended DA is accompanied by a Preliminary and Detailed Site Investigation Report, prepared by Alliance Geotechnical and dated 6 November 2024. This report concludes that acid sulfate soils are able to be effectively managed on the site subject to implementation of the identified strategies, methodologies, plans and procedures. Agreed conditions of consent are imposed to require implementation of the report’s recommendations. Accordingly, I am satisfied that the amended DA satisfactorily addresses those matters set out at cl 6.1 of the WLEP.

54. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report, prepared by Alliance and dated 19 February 2025. This report makes recommendations to minimise potential risks to nearby properties. Additionally, the Applicant has provided a Site Hydrogeology Report, prepared by Reditus and dated 1 October 2025. This report identifies the need for a fully tanked basement structure and temporary site dewatering during excavation and construction. The parties agree, and I am satisfied, that the matters set out at cl 6.2(3), have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation, site dewatering and construction phase works.

55. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

56. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary and Detailed Site Investigation Report, prepared by Alliance Geotechnical and dated 6 November 2024. This report concludes that the site can be made suitable for the proposed use. Agreed conditions of consent are imposed requiring compliance with the recommendations in the report.

57. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

58. Section 2.48 of SEPP Infrastructure applies to the amended DA since the site is within close proximity to an electricity substation. The DA was referred to the electricity supply authority, Ausgrid, which has not provided a response within 21 days. The parties agree, and I am satisfied, that the relevant jurisdictional prerequisite to the grant of consent has been satisfied.

59. Pursuant to s 2.119 of SEPP Infrastructure, the site has access to New South Head Road, a classified road. The amended DA provides vehicular access to the site away from New South Head Road, from Kiaora Lane, thereby not adversely affecting the safety, efficiency and ongoing operation of the classified road.

60. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 3.2 of SEPP Sustainable Buildings, a NABERS Embodied Emissions Materials Form has been provided in support of the amended DA, quantifying the embodied emissions attributable to the development.

61. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

62. Chapter 6 of SEPP BC deals with water catchments and is relevant to the amended DA. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment but outside the Foreshores and Waterways Area.

63. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

64. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment.

65. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the amended DA is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems, and will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody, or on the natural recession of floodwaters into wetlands or other riverine ecosystems.

66. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

67. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

68. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

69. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

70. The Court notes that:

71. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

72. The Applicant has lodged the amended DA with the Court on 10 November 2025.

Orders

46. The Court orders that:

47. Leave is granted to the Applicant to amend Development Application DA2024/508/1 and rely upon the amended plans and documents referred to in Condition A.3 at Annexure A.

48. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $21,000 within 28 days of the date of these orders.

49. The appeal is upheld.

50. Consent is granted to Development Application DA2024/508/1 (as amended) for the demolition of existing buildings and construction of a new five-storey commercial building, with roof terrace and two-level basement car parking, at 393-395 and 397-399 New South Head Road, Double Bay, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A (626 KB, pdf)

Architectual Plans Part 1 (5.42 MB, pdf)

Architectual Plans Part 2 (38.3 MB, pdf)

Architectual Plans Part 3 (29.8 MB, pdf)

Architectual Plans Part 4 (23.4 MB, pdf)