Aland B & W Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1456 | Case summary | Zoe

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Aland B & W Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1456 | Case summary | Zoe

COMMISSIONER: This Class 1 appeal is in respect of development for the purpose of alterations and additions to a dwelling house located at 42 Wentworth Road, Vaucluse, legally known as Lot 1 DP 315736 for which development consent was originally granted on 1 June 2023 (the June Consent).
The Applicant now seeks to modify the June Consent, pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act). To this end, Modification application No DA441/2022/1 was lodged with Woollahra Municipal Council (the Council) on 16 July 2024, and was publicly notified between 7 August-22 August 2024.
In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (LEC Act*)* on 2 June 2025, at which I presided.
Prior to the conciliation conference, the Applicant prepared amended plans and other documents that, in the view of the Council at the commencement of proceedings, addressed the matters in contention subject to an adjournment to settle agreed conditions of consent.
On the basis of those amended plans, and the agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Council approved the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 13 June 2025, and further material provided to the Court in the days following.
The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [33].
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
First, as the appeal is made pursuant to s 4.55(2) of the EPA Act, as the presiding Commissioner, I must be satisfied that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.
A stream of authorities has held that the term “modify” means “to alter without radical transformation” (Sydney City Council v Ilenace Pty Ltd (1984) 54 LGRA 217 at 223; [1984] 3 NSWLR 414, 420, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 473; [1998] NSWSC 163 (Michael Standley), Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [14], and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects) at [27]).
The means by which consent may be modified is facultative and beneficial, as shown in Michael Standley, at p 474, and the comparison required by s 4.55(2)(a) of the EPA Act is between the development as modified and the development as originally approved.
This comparative exercise is not to be undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted): Moto Projects at [56].
With respect to s 4.55(2) of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted for the reasons that follow:
In qualitative terms, the proposed development remains defined as substantial alterations and additions to an existing multi storey dwelling house over basement carparking, and broadly within the envelope of the June Consent.
In quantitative terms, the proposal maintains the floor space ratio of the original consent setbacks, extent of landscaping and number of car parking spaces and the like. To the extent the volume of excavation varies from the original consent, it is a reduction. To the extent the height is greater, and exceeds the height standard of 9.5m that applies to the site, the existing building likewise exceeds the height standard.
The parties agree that the proposed modifications, which include the exceedance, contribute to the contemporary character of the dwelling and ensure compatibility with the desired future character of the neighbourhood. The proposed skylight hatch and roof-mounted solar panels will not be visible from the street or surrounding development. The proposed modifications will not result in adverse shadowing or view impacts.
The parties agree that the proposed technical height exceedance is appropriate in the circumstances of this particular case and the proposed modifications remain consistent with the objectives of the height development standard contained in the WLEP.
As shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], s 4.55(2) is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the WLEP does not apply to modification applications.
The parties also agree that the proposed development, as proposed to be modified, achieves the relevant objectives of the Woollahra Development Control Plan 2015 (WDCP) in respect of the following:
While the proposed modification includes rear fencing increase of 400mm above the height limit of 1.8m, such a height ensures amenity and privacy for future occupants utilising the rear private open space area. Furthermore, the design of the fencing and associated planters ensure the proposed modifications contribute positively to the streetscape, does not result in adverse amenity impacts, and is consistent with the architectural character of the area.
The Revised Landscape Plans prepared by A Total Concept Landscape Drawing Number L/00 Revision G, as modified, demonstrate conformity with the numerical controls for deep soil landscaped area contained Part B3.7.1 of the WDCP. The proposed deep soil landscape area is 36.7% of the total site area, being greater than the required 35%.