Comino v Woollahra Municipal Council

Cases Cited: Comino v Woollahra Municipal Council [2024] NSWLEC 1336

Texts Cited: Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: Victor Charles Comino (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
J Oldknow (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/154731

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA330/2023 (the consent) granted by the Court in Comino v Woollahra Municipal Council [2024] NSWLEC 1336 (Comino v Woollahra). That decision granted approval for the construction of a three-storey dwelling house with associated landscaping and site works, at 63 Fitzwilliam Road, Vaucluse (Lot 1 in DP 940103).

2. Application DA330/2023/2 (the Modification Application) proposes to make the following amendments to the approved development:

3. Internal amendments to the dwelling, resulting in a reduction in gross floor area (GFA);

4. Remove the following condition from the consent:

D1. Modification of Details of the Development (section 4.17(1)(g) of the Act)

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority, must detail the following amendments: … b. The proposed extension of the external wall to the living area towards the eastern boundary, resulting in a side setback of 1100mm, is to be deleted. This condition has been imposed in order to mitigate visual impacts on adjoining properties due to a non-compliance with the Floor Space Ratio development standard and its inconsistency with Objective (b) in Part 4.4(e) of the Woollahra LEP 2024.

3. The modification application proposed for approval has been amended since filing in response to contentions raised by the Respondent.

4. In exercising the functions of the consent authority on appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act.

5. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 January 2025. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties to approve the modification application. The terms of the parties’ agreement is outlined in their executed s 34 written agreement.

6. 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. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Jurisdictional preconditions to consent

7. The Modification Application is to be assessed pursuant to s 4.56(1) of the EPA Act, as it seeks to modify a consent granted by the Court.

8. The jurisdictional pre-requisites in s 4.56(1)-(1A) of the EPA Act include:

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, and

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

…

(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified

Substantially the same: s 4.56(1)(a) of the EPA Act

9. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates, is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

10. Quantitatively the changes are focussed on internal changes to a number of support or service spaces, the deletion of a bathroom and minor internal alterations. The remainder (the majority) of the development remains unchanged.

11. The modification application does not propose any change to the use, overall appearance, scale, or form of the proposed development. With the exception of the amendment to the side setback of the eastern boundary wall there be no perceived changes to the development when viewed from the public domain or neighbouring properties.

12. I am satisfied that on the basis of the amendments made by the applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that, consent as originally granted was modified).

Consultation: s 4.56(1)(b)-(c) of the EPA Act

11. Between 11 and 26 September 2024, the Modification Application was notified by the Respondent. The notification of the Modification Application is compliant with Chapter 6 of the Woollahra Community Participation Plan 2019 and section 10, Schedule 1 of the EPA Act which requires a minimum notification period of 14 days.

12. Two submissions were received by the Respondent. Further, at the conciliation conference the Court was addressed by one of the objectors to the Modification Application. The main objections to the Modification Application were that the deletion of condition D1 on the consent will result in the eastern boundary wall, in their view, having a greater visual and view loss impact on the adjoining property.

13. As detailed in [5], in circumstances where the parties have reached agreement in proceedings the role of the Court is to ensure that the decision agreed is one which the Court could have made in the proper exercise of its functions. In this case the relevant matter to be satisfied is that the submissions have been considered in accordance with s 4.56(1) of the EPA Act. I accept the agreement of the parties that the submissions have been considered. The requirements of s 4.56(1) of the EPA Act are met

Consideration of the matters referred to in s 4.15 of the EPA Act that are relevant to the development: s 4.56(1A) of the EPA Act

14. The jurisdictional preconditions relevant to the development are detailed in Comino v Woollahra and remain pertinent and satisfied, and are not altered by the Modification Application, except as detailed below:

15. The amendments to the Modification Application result in a Floor Space Ratio (‘FSR’) of 0.503:1, which is a de minimis exceedance of 0.003 with the applicable FSR development standard of 0.5:1 pursuant to cl.4.4E of the Woollahra Local Environmental Plan 2014 (LEP 2014). A variation request pursuant to cl 4.6 of LEP 2014 is not required for a Modification Application: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [34] – [35].

16. An amended BASIX certificate has been prepared, addressing the modified development as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

17. The parties agree, and I accept, that the modification application is acceptable when regard is had to the provisions of the Woollahra Development Control Plan 2015 (DCP 2015). Further, the likely impacts of the proposed development are acceptable, and the site remains suitable for the proposed development.

Consideration of the reasons given by the consent authority for the grant of consent: s 4.56(1A) of the EPA Act

15. The reasons for granting consent are detailed in the judgment in Comino v Woollahra*.* The Amended Modification Application does not seek to vary any essential element of the reasons for the grant of the Original Consent.

16. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

18. The Court notes that:

19. Woollahra Council, as the relevant authority under s 113 of the Environmental Planning and Assessment Regulation 2021, agreed to the Applicant amending the Modification Application No. DA 330/2023/2 (‘Modification Application’) in accordance with the following amended plans and documents:

(i) Architectural Plans (up to Rev C) prepared by David Katon Studio Pty Ltd dated 4 June 2025, including:

| Description | Sheet No. | Date | Revision | | Level 1 Basement | 01 | 04/06/2025 | C | | Level 2 | 02 | 04/06/2025 | C | | Long Sections | 09 | 04/06/2025 | C | | GFA | 17 | 04/06/2025 | C |

(the ‘Amended Modification Application’).

2. The Applicant filed the Amended Modification Application with the Court on 20 June 2025.

Orders

19. The Court orders that:

20. The appeal is upheld.

21. Modification Application DA330/2023/2 for amendments to the approved residential dwelling and conditions of consent approved in DA330/2023 is approved.

22. Development consent DA330/2023/1 is modified in the terms set out in Annexure A

23. Development consent DA330/2023/2 as modified by the Court is set out in Annexure B

………………………….

D Dickson

Commissioner of the Court

Annexure A

Annexure B

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