Annandale Street Developments Pty Ltd v Woollahra Municipal Council

Category: Procedural rulings

Parties: Annandale Street Developments Pty Ltd (Applicant) (Respondent on the motion)
Dr Sarah Hosking (Joinder Applicant) (Applicant on the motion)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
Mr A Galasso SC (Applicant) (Respondent on the motion)
Mr R Coffey (Joinder Applicant) (Applicant on the motion)
Mr F Patag (solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Joinder Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/00327244

Publication restriction: Nil

JUDGMENT

Introduction

1. On 4 March 2024, Commissioner Horton granted development consent for the construction of a residential flat building at 7 Annandale Street, Darling Point (the Land), subject to conditions (first development consent): Annandale Street Developments Pty Limited v Council of the Municipality of Woollahra [2025] NSWLEC 1122 (DA Judgment).

2. The first development consent was for construction of a three-storey residential flat building of 11.83 metres in height (less a further 200 millimetres as an agreed condition of consent). The relevant height standard for a building in the location of the Land under the Woollahra Local Environmental Plan 2014 (WLEP) was (and remains) 10.5 metres. The Commissioner was however satisfied that the proposed development “achieves the objectives of the height standard… of the WLEP, as well as the objectives of the R3 zone, notwithstanding the non compliance with the height standard”: DA Judgment at [20]. Therefore, he varied the height standard for the first development consent: DA Judgment at [26].

3. On 28 February 2025, the Low and Mid-Rise Housing Provisions (LMRH P****rovisions) were introduced into Chapter 6 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). These changes potentially allowed for an increase in height for a building on the Land to 17.5 metres.

4. On 14 July 2025, Annandale Street Developments Pty Limited (Annandale Street) lodged a second development application (Second DA) with the Woollahra Municipal Council (the Council) which seeks an increase in height (to 14 metres) of the residential flat building proposed to be built on the Land, and for that building to be four storeys in lieu of the currently approved three-storey development.

5. On 26 August 2025, Annandale Street commenced Class 1 appeal proceedings against the Council’s deemed refusal of the Second DA.

6. In its Statement of Facts and Contentions filed on 29 September 2025 (SOFAC), the Council’s Contention 1.1 was as follows:

“The DA should be refused as the Applicant has not adequately determined whether Chapter 6 of the SEPP (Housing) 2021 is applicable.

Particulars

(a) The Applicant has not accurately determined whether the subject Site is identified as being within the ‘low and mid rise housing outer area’ i.e. that it is within 800m walking distance (as defined within Schedule 10 of this Policy) of the identified Edgecliff Town Centre.”

7. Contentions 1.2 to 1.4 of the Council’s SOFAC asserted that the Second DA should be refused because of lot size, height, and floor space ratio exceedances. However, since the filing of its SOFAC, the Council has become satisfied that the LMRH Provisions in the Housing SEPP apply to the Land as it is within 800 metres “walking distance” of both the Edgecliff and Double Bay town centres.

8. Accordingly, in its Amended Statement of Facts and Contentions (A****mended SOFAC), the Council has withdrawn Contentions 1.1 to 1.4 of its original SOFAC.

9. Dr Sarah Hosking (the Joinder Applicant) is the owner of 1 Yarranabbe Road, Darling Point (1 Yarranabbe Road). She contends that the development proposed in the Second DA will impact views from her property, and have adverse heritage impacts upon it. She filed a notice of motion on 19 December 2025 (Joinder Motion), in which she seeks to be joined to the proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on the following two issues:

10. she contends it is not clear that the Land falls within the LMRH Provisions of the Housing SEPP, as it is not clear that the Land is within 800 metres walking distance of either the Edgecliff or Double Bay town centres (800 metre walking distance issue); and

11. although the Amended SOFAC contains a heritage contention, that contention is insufficiently particularised, and not all relevant issues of heritage impact will be sufficiently addressed (heritage issue).

12. Annandale Street, represented by Mr A Galasso SC, opposed the order for joinder sought by the Joinder Applicant. The Council, represented by Mr F Patag, solicitor, neither opposed nor consented to the orders sought by the Joinder Applicant.

13. For the reasons that follow, in my view the Joinder Motion should be dismissed.

Relevant Statutory Provisions and Principles

LMRH Provisions

12. Section 163 of the Housing SEPP relevantly provides as follows:

163 Definitions

In this chapter—

Deferred Transport Oriented Development Areas Map means the State Environmental Planning Policy (Housing) 2021 Deferred Transport Oriented Development Areas Map.

low and mid rise housing area means—

(a) land within 800m walking distance of—

(i) land identified as “Town Centre” on the Town Centres Map, or

(ii) a public entrance to a railway, metro or light rail station listed in Schedule 11, or

(iii) for a light rail station listed in Schedule 11 with no public entrance—a platform of the light rail station, and

(b) if a site area contains land identified in paragraph (a)—the site area.

Low and Mid Rise Housing Exclusion Map means the State Environmental Planning Policy (Housing) 2021 Low and Mid Rise Housing Exclusion Map.

13. There is no dispute between the parties that if the Land is within 800 metres “walking distance” of either the Edgecliff or Double Bay town centres as identified on the relevant town centres map, the LMRH Provisions apply. Development on the Land can therefore be approved up to a height of 17.5 metres provided it has four storeys or fewer: s 176(2) of the Housing SEPP. It should be noted here that s 163(a)(ii) of the Housing SEPP is not applicable, as the Edgecliff Station is not listed in Sch 11. The sole issue then in relation to the LMRH Provisions is whether the Land is within 800 metres “walking distance” (as defined) of either of the two town centres.

14. Walking distance is defined in the Housing SEPP as follows:

walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.

Joinder Provisions

15. Although the Joinder Applicant’s motion relies on both s 8.15(2) of the EPA Act and r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Mr Coffey, who appeared for the Joinder Applicant, indicated that in truth the application for joinder was only made under s 8.15(2): T20.27-30.

16. Section 8.15(2) is in the following terms:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that—

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

17. As is clear from the text of s 8.15(2)(a), the Court may make an order for joinder of a party if it is satisfied that the Joinder Applicant wishes to raise an issue that should be considered in the appeal which has not currently been raised. This is the Joinder Applicant’s contention in relation to the 800 metre walking distance issue that the Council has now abandoned. Section 8.15(2)(a) also allows joinder where the Court is satisfied that although a relevant issue has been raised, it “would not be likely to be sufficiently addressed” if the Joinder Applicant is not joined as a party to the proceedings. This is the Joinder Applicant’s contention in relation to the heritage issue. Further, under s 8.15(2)(b), the Court can grant joinder if it forms the opinion that it is either in the interests of justice or in the public interest that a joinder applicant be joined as a party to an appeal.

18. A helpful summary of relevant principles in relation to s 8.15(2) of the EPA Act is contained in the judgment of Pepper J in Jon Garling v Northern Beaches Council [2022] NSWLEC 102, where her Honour at [47] noted the following:

“Those observations are supported by a plethora of authorities of this Court and the principles applicable to applications for joinder are well established and may be summarised below:

(a) an application under s 39A of the LEC Act is a two stage process to determine firstly, whether s 39A is met and secondly whether the exercise of discretion justifies an order (Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]);

(b) s 8.15(2) is facultative in the sense of enabling the Court to join a person to proceedings under the EPAA of the types listed in that section who would not otherwise have a right to be a party to such proceedings (Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [42]);

(c) caution should be exercised before an order for joinder is made (Morrison at [41] – [54]):

(i) the power under s 8.15(2) of the EPAA is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to an appeal;

(ii) community consultation and public participation under the EPAA are not intended to give the community or affected persons who object to development any entitlement to veto development; and

(iii) mere dissatisfaction with the merit outcome of a determination of a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission;

(d) a multiplicity of parties is undesirable (Bongiorno Hawkins Frassetto at [9] and The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]);

(e) so too is a multiplicity of experts;

(f) both the multiplicity of parties and experts undermines the efficient conduct of litigation and practice of the Court (Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63 at [15]);

(g) the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think sufficiently important does not automatically warrant an order for joinder under s 8.15(2) of the EPAA (Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36] and The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]);

(h) the Court retains a discretion as to whether or not an order for joinder should be made and would take into account matters such as:

(i) the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings (Bongiorno Hawkins Frassetto at [6]); and

(ii) the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the “just, quick and cheap” resolution of the proceedings: see s 56 of the Civil Procedure Act 2005 (“the CPA”) (Azzure-Blacktown at [16] and Sabian at [14]).”

Evidence

19. For the Joinder Applicant, an affidavit of Samuel Arthur Stoljar dated 19 December 2025 was read without objection. Mr Stoljar is a solicitor for the Joinder Applicant.

20. In his affidavit, Mr Stoljar expresses the opinion that Annandale Street “has failed to demonstrate that the site falls within 800m of a town centre”. At [38] to [40] of his affidavit, Mr Stoljar refers to two surveys conducted by surveyors engaged by the Joinder Applicant to survey the distance of the Land to the nearest town centre. This includes a survey conducted by Rygate Surveyors dated 25 November 2025 (Rygate Survey), and one conducted by Sydney Surveyors dated 8 December 2025 (Sydney Survey). At [39] and [41] of the affidavit, Mr Stoljar states as follows:

“39 The surveys provide information on possible routes between the Site and the Town Centre located at Edgecliff Station. The Rygate Survey provides the following measurements:

39.1 A “door to door” measurement including pedestrian access of 826.0m;

39.2 The distance from the Site to the entrance to Edgecliff Centre of 808.14m;

39.3 A “corner of the block to corner of the block” measurement of 778.8m.

40 The Sydney Survey provides an alternate “corner of the block to corner of the block” measurement of 772m.

41 In my opinion, the route between the Site and the Town Centre is a critical jurisdictional issue. While both the Surveys have been provided to Council, further information in relation to the walking distance could be adduced because it has not been sufficiently demonstrated that the Site certainly falls within the low and mid rise housing area.”

21. A plan prepared in the Rygate Survey is at page 99 of Exhibit SAS-1 to Mr Stoljar’s affidavit. On the plan a black line is drawn which is said to be a “safe walking path” from the Land to the Edgecliff Town Centre border. This is a distance of approximately 778 metres. The 826 metre distance referred to as a “door to door” measurement in Mr Stoljar’s affidavit is, so I was told, the distance from the proposed pedestrian access and egress point of the proposed development to the entry point of the building known as the Edgecliff Centre. Sydney Surveyors’ plan, which is at page 100 of the Exhibit SAS-1 to Mr Stoljar’s affidavit shows in a red dotted line the distance between the nearest part of the Land to the Edgecliff town centre, and the town centre itself (said to be 772 metres).

22. For Annandale Street, an affidavit of Ms Emma Whitney, dated 16 January 2026, was read without objection. Ms Whitney is the solicitor with day-to-day carriage of the matter. Annexure A to Ms Whitney’s affidavit is a survey dated 12 October 2025 prepared by Beveridge and Williams, registered surveyors, for Annandale Street. An A3 copy of a sketch showing the walking distance from the Land to both the Edgecliff and Double Bay town centres was tendered as Exhibit A on the motion. In that survey, the walking distance between the part of the Land nearest to Edgecliff Centre is said to be 784 metres. The walking distance between the Land and 50 Bay Street, Double Bay is said to be 761 metres.

23. Although neither opposing nor consenting to the orders sought in the Joinder Motion, the Council read an affidavit of Valdis Aleidzans dated 14 January 2026. Mr Aleidzans is a “Senior Assessment Officer” employed by the Council. He is the responsible case management officer for the Second DA. In his affidavit, to which no objection was taken, Mr Aleidzans deposes to the fact that he “measured the walking distance from E1 Zone at Edgecliff to the subject site”: Aleidzans affidavit at [11]. The device or instrument that Mr Aleidzans used to measure the distance was a “trundle wheel obtained from Council”. At [12] to [16] of his affidavit he deposes to the following matters:

“12 In my opinion, the route I followed was the most efficient route which was safe and used lawful road crossing points, as shown on the route map captured with Nearmap at Annexure D to this affidavit.

13 I measured the distance using a trundle wheel obtained from Council. The route commenced at the boundary of the south west corner of the subject site to the approximate location of the boundary of the "Town Centre" as identified on the Town Centres Map under cl 163 of the State Environmental Planning Policy (Housing) 2021. The Town Centre in the Edgecliff area is shown at Annexure E to this affidavit.

14 The approximate location of the boundary of the Town Centre is the inward edge of the footpath adjacent to the pedestrian crossing lights outside the entrance to Edgecliff Station. I then measured the return distance to the subject site.

15 The measurements I recorded were as follows:

a. 7 Annandale Street to the inward edge of the footpath outside Edgecliff Station: 790.3 metres (Annexure F to this affidavit).

b. The inward edge of the footpath outside Edgecliff Station to 7 Annandale Street: 791.4 metres (Annexure G to this affidavit).

16 Based on my measurements, I am satisfied that the subject site is within 800 metres walking distance of the Town Centre in the Edgecliff area identified on the Town Centres Map under cl 163 of the State Environmental Planning Policy (Housing) 2021 and is therefore located within a low and mid rise housing area.”

Submissions

Joinder Applicant

24. In relation to the 800 metre walking distance issue, at its most general, the contention of the Joinder Applicant is that if there is any doubt as to whether or not the Land is within 800 metres walking distance of (relevantly) the Edgecliff or Double Bay town centres, the Joinder Applicant should be joined as a party to the proceedings. This is because unless she is, there will be no contradictor to this issue given that the Council has conceded that the Land is within 800 metres walking distance.

25. More specifically, the Joinder Applicant complains about the potential imprecision of the measurements taken by Mr Aleidzans using the trundle wheel. It was submitted that any measurement of distance should be made by a surveyor along a route that “may be safely walked by a pedestrian” as determined by a traffic engineer: see Joinder Applicant’s Written Submissions (JWS) at [54]-[56].

26. In his oral submissions, Mr Coffey elaborated on his written outline, and said this:

“… what we don’t know is the topography of the particular land in terms of where on the land has the particular officer, in the course of his measurements, taken it from?… [t]he other aspect is whilst we have some information concerning the route that he has taken, is that – with respect, we also say that traffic engineering advice is necessary, in order to understand that it is the safest route”: T8.19-28.

27. What I also understood from Mr Coffey’s submissions is that because s 163 of the Housing SEPP is directed to “walking distance”, there is at least scope to argue that the measurement should not be taken from the closest part of the Land to the closest part of a town centre, but from the pedestrian entry and exit location of the proposed development on the Land to the entry point of the Edgecliff Centre itself (as distinct from the boundary of the Edgecliff town centre): T13.40-T14.10. This was said to require expert evidence: T15.16-19. This submission was made, it would appear, to address parts of the evidence of the Joinder Applicant’s own surveyors as described in [20] above.

28. As to the heritage issue, although acknowledging that the Council’s Amended SOFAC now raises an “unacceptable impact on … local heritage items and their settings” contention (Amended SOFAC at [1.8]) the complaint is that the contention is drafted too generally, and fails to particularise the “unique characteristics” of the Joinder Applicant’s home at 1 Yarranabbe Road, such as:

“its unique characterisation as a (a) Queen Anne Style home, (b) a ‘Marine Villa’ where the significance is dependent upon the retention of Harbour views to and from and (c) that it is an item of local heritage significance under the Woollahra LEP known as “Newstead””: JWS at [5].

Annandale Street Submissions

29. Mr Galasso SC submitted that the Joinder Applicant’s motion in relation to the 800 metre walking distance issue should be dismissed on the Joinder Applicant’s own surveying evidence. Relying on the Rygate Survey, Mr Galasso SC submitted that it is clear that the distance from the nearest part of the Land to the boundary of the Edgecliff town centre is less than 800 metres (approximately 778 metres).

30. As to the heritage issue, Mr Galasso SC submitted that the Council’s Amended SOFAC adequately raises the alleged heritage impacts as a reason for refusing development consent, and that the particulars the Joinder Applicant says should be included in the Council’s contentions would, as a matter of obviousness, be matters that would be addressed in the expert evidence on this topic.

Resolution

800 metre walking distance issue

31. The definition of “walking distance” in the Heritage SEPP does not contain technical terms: Pearson v State of New S**outh W**ales [2025] NSWLEC 134 at [85] per Pritchard J. The text of the entire definition, being “the shortest distance between two points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings”, can be construed in accordance with its ordinary meaning.

32. I accept the Joinder Applicant’s submissions that to measure the “shortest distance” that “may be safely walked by a pedestrian” requires, in the context of a Class 1 appeal, evidence of an expert kind. Dealing firstly with the evidence of Mr Aleidzans, I accept that he would have attempted to measure the distance between the Land and the Edgecliff and Double Bay town centres as accurately as he could using the trundle wheel apparatus. Arguably lacking from his affidavit however is any evidence as to:

(a) how the trundle wheel was calibrated; (b) any evidence as to the accuracy of the trundle wheel, and in particular whether it has a “margin of error”; and (c) the exact route he took other than what he has said in [15] of his affidavit as set out above.

33. On Mr Aleidzans measurements alone, given that both town centres are within 10 metres of the 800 metre requirement, I would not have been satisfied that there is not some scope to argue on the Class 1 appeal that the Land might not be within 800 metres walking distance of the respective town centres, thereby bringing into issue as to whether the LMRH Provisions in the Housing SEPP apply.

34. However, the Joinder Applicant has tendered survey evidence of its own. That evidence establishes in my view that the Land is less than 800 metres from the Edgecliff town centre (and probably the Double Bay town centre as well).

35. Dealing with the Edgecliff town centre, based on the Rygate Survey, the distance from the nearest part of the Land to the boundary of the Edgecliff town centre is approximately 778 metres. 800 metres is only exceeded if the measurement is taken from the entrance of the proposed development to be built on the Land, extending to the entrance of the Edgecliff Centre building. Section 163 of the Housing SEPP could be more clearly drafted, but in my view the combined effect of s 163(1)(a) and (b) is that the distance to be measured begins at the nearest part of the Land to (in this case) the Edgecliff town centre. The distance is then measured from this part of the Land to the border of the Edgecliff town centre. My view is reinforced by the definition of “site area” in the Housing SEPP, which is:

site area or site means the area of land on which development is or will be carried out and may include the whole or part of 1 lot, or more than 1 lot if the lots are contiguous to each other, but does not include land on which development is not permitted to be carried out under this Policy.

36. The definition of “site area” suggests that the measurement of distance is to be from the nearest part of the Land to either the Edgecliff or Double Bay town centre. Mr Coffey appeared to concede this during his address: T10.10-39.

37. Even if this is wrong, and the measurement should begin at the proposed pedestrian entry/exit point of the proposed development, there is no basis for the measurement extending to the entry point of the building that is the Edgecliff Centre, as distinct from the boundary of the Edgecliff town centre as identified on the relevant town centres map. The town centre boundary of Edgecliff is not the front entrance of the building that is the Edgecliff Centre. Whether measured from the nearest part of the Land to the town centre boundary, or from the proposed pedestrian exit point of the proposed development on the Land, the distance to the Edgecliff town centre boundary according to the Rygate Survey is less than 800 metres.

38. The Rygate Survey says that it is based on a “safe walking path”, and describes that path: p 98 of Exhibit SAS-1. No submission was made that there is any reason to doubt this.

39. I therefore accept the submission of Annandale Street that, on the Joinder Applicant’s own evidence, there appears little doubt that the Land is within 800 metres walking distance, as defined, of a town centre. I therefore refuse joinder in relation to the 800 metre walking distance issue.

Heritage Issue

40. The heritage contention in the Amended SOFAC is as follows:

“1.8 The DA should be refused as the proposed development will have an unacceptable impact on the local heritage items and their settings, in particular but not limited to 32 Darling Point Road and 1 Yarranabbe Road, Darling Point as viewed from Yarranabbe Park, foreshore and harbour.”

41. I accept Mr Galasso SC’s submission that the heritage impact issue is sufficiently raised by this contention. In particular, it raises heritage impacts relevant to the Joinder Applicant’s home when viewed from each of Yarranabbe Park, the foreshore, and the harbour. It identifies the Joinder Applicant’s home as being a “local heritage item”. That it does not particularise any unique heritage features of 1 Yarranabbe Road, such as those set out at [5] of the JWS referred to in [28] above, does not persuade me that any heritage impacts will not be sufficiently addressed if the Joinder Applicant is not joined. What makes 1 Yarranabbe Road a “local heritage item”, or the fact that it is a local heritage item, will almost certainly be covered in the evidence, as will why there is an adverse heritage impact because of relevant view loss. I am therefore not persuaded that heritage impacts as a reason for refusal of development consent will “not be likely to be sufficiently addressed” if the Joinder Applicant is not joined as a party to the proceedings.

42. Although no submission was made by the Joinder Applicant based on s 8.15(2)(b), for completeness, nothing else in the evidence persuades me that it is in the interests of justice or the public interest to join the Joinder Applicant to the proceedings.

43. For the above reasons, the joinder motion is dismissed.

Orders

44. I make the following orders:

45. The Joinder Applicant’s motion filed on 19 December 2025 is dismissed.

46. Costs are reserved.

47. Should any party wish to apply for an order for costs, they are to file, serve, and send to my Associate written submissions of no more than three pages in support of such an application within seven days of the date of this judgment. Any submissions in reply are to be filed, served, and similarly sent to my Associate within a further seven days, and are also limited to three pages. Any application for costs will be determined on the papers.

48. Should no application for costs be made by any party in accordance with order three above, an order will be made that there is no order as to costs of the Joinder Motion.

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