Cherice Pty Ltd v Woollahra Municipal Council

Subject Modification Application No DA355/2019/4

1. On 10 October 2024, the subject Modification Application was lodged with the Court.
2. From 6 November 2024 to 21 November 2024, the Modification Application was publicly notified. Five submissions were received by the Council.
3. 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 first held on 17 February 2025. I presided over the conciliation conference.
4. During the course of the s 34 conciliation conference the Applicant proposed a number of amendments to the Modification Application to respond to the issues raised by both Council and those resident objectors who appeared at the commencement of the s 34 conference. Those amendments include the following: (a) Minor modifications to pedestrian access ramps from Cross Street to comply with accessibility (b) Main entry door minor relocation (c) Minor modifications to retail ramps to comply with accessibility Ground Floor (d) Minor internal modifications to retail shop to accommodate a pump room and the required clearances for services (e) Waste room and apartment storage relocated (f) Bike storage relocated (g) Disabled toilet relocated to accommodate the new pump room location First Floor (a) Minor internal layout re-configuration Second Floor (a) Minor internal layout modifications to create a two-level unit (lower level of Unit 2) (b) Increased setback to Knox Lane by 2m Third Floor (a) Minor internal layout modifications to create a two-level unit (upper level of Unit 2) (b) Increased setback to Knox Lane by 2m (a) Minor internal layout modifications including addition of dumbwaiter for Unit 3 Fourth Floor (b) Balcony planter box to Cross Street deleted (c) New privacy screen to North-west balcony facing Cross Street Fifth Floor (a) Minor internal layout modifications including addition of dumbwaiter for Unit 3 (b) Concrete owner reduced in depth to 1200mm (a) Removed vergola (b) Removed skylight (c) Removed WC Roof (d) Removed pool (e) Planer boxes increased on both North and South sides (f) AC units relocated and screened (g) Proposed new dumbwaiter to finish on this level Lift Overrun (a) Reduced height of lift overrun (b) Fire stair structure modified in shape to reduce overall bulk

(amended Modification Application)

1. The parties are now agreed that the Modification Application (as amended) has resolved the Council's contentions, and that the Modification Application may be approved subject to the conditions of consent at Annexure B to the s 34 Agreement dated 4 March 2025 (Agreement).
2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions.
3. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the following:

Environmental Planning and Assessment Act 1979

1. Section 4.55(2)(a) of the EP&A Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is "substantially the same" as the originally approved development.
2. The Consent (as originally granted) approved the substantial demolition of the existing structures, and the construction of a five-storey shop top housing development containing: 1. ground floor retail shops with frontages to Cross Street and Knox Lane, 2. two x three-bedroom apartments and one x four-bedroom apartment above (total of three apartments), 3. resident car parking for six cars on the ground level with access from Knox Lane, 4. a rooftop terrace with swimming pool, and 5. minor excavation to accommodate the lift shaft and footings. (see, PDSA Pty Ltd at [4]).
3. The development as proposed to be modified by the Modification Application (as amended) will remain substantially the same as the development originally granted by the Consent prior to any modification in view of: 1. the development continues to be one of shop top housing containing three residential units, ground floor retail spaces and tandem car parking spaces, as originally approved; 2. although the number of storeys would be increased from five to six, entailing a corresponding increase in building height and floor space ratio, the resultant urban form remains substantially the same in a qualitative sense given: 1. the building, as modified, would have the same number of storeys as its neighbours (see, p 2 of Urban Design Review by Architectus dated 11 February 2025 (Urban Design Review)); 2. the building, as modified, would remain consistent with the desired future character of the locality, and visual and overshadowing impact remains acceptable despite the height increase (see, pp 5 - 8 of the Urban Design Review); and 3. the height of the building will remain appropriate in urban design terms (see, pp 8 - 9 of the Urban Design Review). 1. the internal layout changes can be regarded as minor and can be regarded as appropriate in urban design terms (see, pp 9 - 10 of the Urban Design Review).
4. For those reasons, the parties submit and I accept that the development to which the consent as modified relates remains substantially the same development as the development for which consent was originally granted (and before that consent was subsequently modified by the Approved Modification).
5. Section 4.55(2)(b) of the EP&A Act requires the relevant Minister, approval body or public authority to be consulted about the Modification Application. As the Consent did not contain any condition imposed as a requirement of a concurrence to the consent and was not granted in accordance with the general terms of an approval proposed to be granted by the approval body, in this instance no consultation was required under s 4.55(2)(b).
6. Section 4.55(2)(c) of the EP&A Act requires the Modification Application to be notified in accordance with regulations and a development control plan (as applicable). In accordance with s 107(2) of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg) and s 4.55(2)(c) of the EP&A Act, the Modification Application has been notified in accordance with a community participation plan, namely Part 6 of the Woollahra Community Participation Plan 2023, for a period of 15 days between 6 November 2024 and 21 November 2024.
7. Pursuant to s 4.55(2)(d), as already identified the Council received five submissions from the public notification of the Modification Application. The matters set out in the submissions received by the Council include the following: 1. non-compliance with the floor space ratio (FSR) development standard; 2. non-compliance with height of buildings development standard; 3. excessive bulk and scale which is inconsistent with the streetscape and desired future character as a result of the additional storey and reduced setbacks at the upper levels; 4. overshadowing/ solar access; 5. parking provision is inadequate thereby exacerbating parking issues in the Double Bay Centre; 6. roof top terraces and pool will set a precedent for future developments; and 7. acoustic impacts from the roof terrace.
8. The parties submit and I accept that the Modification Application, as amended, adequately addresses the relevant merit issues raised in the written submissions and the further oral submissions received at the site at the commencement of the s 34 conference.

Consideration of Matters required by section 4.55(3) of the EP&A Act

1. Section 4.55(3) of the EP&A Act requires the consent authority to consider: 1. the matters in s 4.15(1) of the EP&A Act as are of relevance; and 2. the reasons given by the consent authority for the grant of the original consent that is sought to be modified.
2. The parties agree that the reasons for the granting of development consent are set out in the judgment of PDSA Pty Ltd and referenced in par 1.2 in Pt B of the Statement of Facts and Contentions filed 3 December 2024 (SOFAC).
3. After a consideration of those reasons, it is accepted that the Modification Application, as amended, adequately resolves the contentions.
4. Accordingly, I am satisfied that the relevant matters specified in s 4.15(1) of the EP&A Act have been considered and addressed by the Modification Application (as amended).

Environmental Planning and Assessment Regulation 2021

1. The parties agree relevant provisions of the EP&A Reg have been considered and are satisfactory. Particularly, the parties note, in accordance with s 98(1) of the EP&A Reg, the Modification Application has been made by the owner of the Site.
2. The parties also note that the Modification Application is not required to be accompanied by a statement by a qualified designer under s 102 of the EP&A Reg. This is because the proposed development, although is shop top housing, would not involve development of four or more dwellings, and thus is not a development to which the State Environmental Planning Policy (Housing) 2021 applies and does not fall within the meaning of "residential apartment development" under the EP&A Reg.
3. In respect of the requirement for a BASIX Certificate under s 100(3) of the EP&A Reg, the parties note the Modification Application, amended, is accompanied by an amended BASIX Certificate No 1028436M_07 dated 27 February 2025, which has been provided to the Council as part of the amended Modification Application.
4. The amended BASIX Certificate confirms the requirements under State Environmental Planning Policy (Sustainable Buildings) 2022 are satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. 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 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.
2. This section of the Resilience and Hazards SEPP was considered satisfied in the assessment of the Consent (see, PDSA Pty Ltd at [55(1)]).
3. The subject Modification Application does not propose to increase the extent of the excavation of the Site and therefore the Court can be satisfied that the land is not contaminated and that this section has been addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The Site is located within the Sydney Harbour Catchment, which is a 'regulated catchment' as defined in Sch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP). As such, the jurisdictional requirements in Div 2 of Pt 6.2 of the SEPP must be satisfied, namely: 1. the consent authority must be satisfied that the development ensures (a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and (b) the impact on water flow in a natural waterbody will be minimized: see s 6.6(2). 2. the consent authority must be satisfied of the matters in s 6.7(2) relating to aquatic ecology. 3. as the subject site comprises 'flood liable land', the consent authority must be satisfied the development will not, (a) if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or (b) have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems: see s 6.8(2). 4. the consent authority must be satisfied of the matters in s 6.9(2) relating to recreation and public access.
2. The parties agree that the jurisdictional requirement in s 6.10 of the B&C SEPP does not apply on the basis that there is no adjacent or downstream Local Government Area on which the proposed development is likely to have an adverse environmental impact.
3. The proposed modified development will have no significant adverse impacts on the Sydney Harbour Catchment, as the approved development is subject to the following conditions including erosion and sedimentation, stormwater and flood risk management control. Those standard conditions include the following: 1. Condition B.3 relating to installation of water pollution, erosion and sediment controls. 2. Condition C.10 requiring preparation of detailed geotechnical report with geotechnical and hydrogeological monitoring program to ensure that geotechnical and hydrogeological impacts are appropriately managed. 3. Condition C.12 requiring approval of stormwater management plan. Includes installation of onsite detention (OSD) (to ensure that site stormwater is disposed of in a controlled and sustainable manner). 4. Condition D.9 in relation to disposal of site water during construction.
4. With regards to s 6.7 of the B&C SEPP, the parties agree that the Site is not located near any aquatic reserve, natural waterbody, coastal wetlands or littoral rainforest area. As the subject site is not located near any natural waterbody, the requirements in s 6.7(2) are met.
5. I am satisfied of the relevant jurisdictional requirements in Pt 6.2 of the B&C SEPP, as set out above having regard to the nature of the proposed development and the proposed conditions of consent.

Woollahra Local Environmental Plan 2014

1. The following clauses of the WLEP are required to be considered in determining the Modification Application: 1. Clause 2.3 - Zone objectives and Land Use Table: The Site is zoned E1 - Local Centre, where shop top housing is a form of development permissible with consent. 2. Clause 4.3 - Height of buildings: 1. The height of a building on any land is not to exceed the maximum height shown for the land on the 'Height of Buildings Map'. The maximum height of buildings for the Site is 14.7m and this height standard is already breached by the approved development under the Consent. 2. Notwithstanding the further contravention of the height standard, the Modification Application can be lawfully approved after assessment (see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 168] at 481C). The Council and the Court are satisfied that the increase in the approved height of the building achieves the following relevant objectives of the height control: 1. Objective (a) to establish building heights that are consistent with the desired future character of the neighbourhood; 2. Objective (c) to minimise the loss of solar access to existing buildings and open space; 3. Objective (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of view, loss of privacy, overshadowing or visual intrusion. 1. Clause 4.4 - Floor Space Ratio: 1. The maximum floor space ratio for a building on any land is not to exceed the floor space ratio (FSR) shown for the land on the 'Floor Space Ratio Map'. A FSR of 2.5:1 applies to the Site and this FSR standard is already breached by the approved development under the Consent. 2. Notwithstanding the further contravention of the FSR standard, the Modification Application can be lawfully approved (see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 168] at 481C). The Council and the Court are satisfied that the increase in the FSR satisfies the following relevant objective of the floor space ratio: 1. Objective 1(b) to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale. 1. Clause 5.10 Heritage - The Site does not contain an item of environmental heritage and is not within a heritage conservation area. Accordingly, the Court can be satisfied of the matters set out in cl 5.10 of the WLEP. 2. Clause 5.21 Flood Planning - The Modification Application (as amended) relates to the changes at ground floor for the pump room and the addition of a residential level at level 3 and therefore, the provisions of cl 5.21 are not applicable. 3. Clause 6.1 Acid Sulfate Soils - As indicated above, the Modification Application (as amended) relates to the changes at Ground floor and above and therefore, the provisions of cl 6.1 are not applicable.

Woollahra Development Control Plan 2015

1. Although the provisions of the WDCP are not jurisdictional pre-requisites to the grant of modifying the Consent in the terms proposed by the Modification Application, the parties agree the Modification Application, as amended, has been considered and assessed against provisions of the Woollahra Development Control Plan 2015.

Likely Impacts

1. The parties agree the development as modified by the Modification Application will have acceptable impacts, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

Suitability of the Site

1. The parties agree the Site is suitable for the development as modified by the Modification Application.

Public Interest

1. The parties agree the Modification Application, as amended, and the conditions of consent are in the public interest as it has adequately addressed the relevant issues raised in the public submissions received by the Council.

Conclusion and orders

1. For the above reasons I am satisfied that the parties' decision is within power as required by s 34(3) of the LEC Act. Accordingly, I now dispose of the proceedings in accordance with their decision.
2. The Court notes that: 1. The Applicant provided the Amended Modification Application DA355/2019/4 to the Court on 4 March 2025. 2. The Applicant is to pay the Council's costs thrown away by the amendment of the Modification Application DA355/2019/4 in the agreed amount of $3,700.00.
3. The Court orders that: 1. Leave is granted, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA355/2019/4 in accordance with the amended plans and additional information at Annexure C. 2. The application is granted. 3. Development Consent No DA355/2019/1 is modified in the terms in Annexure A. 4. Development Consent No DA355/2019/1 as modified by the Court is 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: 06 March 2025