Concretive BHV Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 98, 100, 102, 113
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 6
State Environmental Planning Policy (Housing) 2021, ch 4, s 147, sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.9

Cases Cited: Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1784
Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1101

Category: Principal judgment

Parties: Concretive BHV Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/85206

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application DA136/2023/4 (the MA) made directly to the Court by Concretive BHV Pty Ltd (the Applicant). In these circumstances, Woollahra Municipal Council (the Respondent) is required to exercise certain functions of the relevant consent authority.

2. The MA seeks to further modify Development Consent DA136/2023/1 (the parent DA), which comprises the substantial demolition of the existing residential apartment building and garage, and construction of a new residential apartment building with basement car park at 206B Victoria Road, Bellevue Hill (the site).

3. Consent for the parent DA was granted by the Court on 8 March 2024 in proceedings Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1101.

4. The parent DA has previously been modified on two occasions. Initially by the Court on 4 December 2024 in proceedings Concretive BHV Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1784 (DA136/2023/2), and then by the Respondent (DA136/2023/3) on 28 April 2025.

5. The subject MA was lodged with the Court on 4 March 2025 and seeks approval to further modify the parent DA to allow internal amendments to comply with fire safety requirement, additional fire egress stairs, reconfiguration and relocation of the basement and parking and associated landscaping.

6. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on on 6 and 20 June 2025. I presided over the conciliation conference.

7. 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 granting approval to an amended MA, subject to conditions.

8. Of note, the MA has been amended during the conciliation conference to resolve the contentions originally pressed by the Respondent, which included concerns primarily for the reduced extent of deep soil and landscaped area and reduced provision of on-site visitor parking.

9. Agreed design amendments include changes to the detailed design of egress stairs to incorporate permeability and the provision of landscape cumulatively improving the landscape design outcome. Additionally, the Applicant has elected to not reduce the number of existing approved on-site visitor car parking spaces. Collectively, these amendments are agreed to resolve the issues in this matter.

10. 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 4.55 of the EPA Act to modify the existing DA.

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

12. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

13. The parties agree, and I am satisfied, that the MA was notified between 2 April and 17 April 2025 in accordance with the Respondent’s Community Participation Plan. The Respondent received no submissions in response to notification.

14. Accordingly, and pursuant to s 4.55(2)(c) and (d) of the EP&A Act, I am satisfied that the MA has been appropriately publicly notified and that any submissions received have been appropriately considered.

15. Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA. The amended MA proposes alterations that are minor in nature, seeking to facilitate necessary fire safety measures consistent with relevant building codes and existing conditions of consent. A minor reduction of deep soil results from the additional egress stairs necessary to comply with the building code. Additional landscaped areas have been provided in the amended MA, which result in a minor non-compliance with the Respondent’s numerical planning controls. The appearance of the building is largely unchanged by the amended MA and results in a development that presents to the surrounding context in a similar manner as the parent DA.

16. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Court for the grant of consent to the parent DA have been appropriate considered by the parties in reaching their agreement in this matter. The Court’s reasons for the original grant of consent to the parent DA include agreed design amendments having been made to improve the parent DA’s relationship to the streetscape, the retention of a significant existing tree at the front of the site, the satisfactory resolution of stormwater management, and the satisfactory resolution of parking and access arrangements.

17. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument.

18. Consistent with the parent DA consent, I am satisfied that the site is zoned R3 Medium Density Residential pursuant to cl 2.3 WLEP. Development for the purposes of residential apartment buildings is permissible with consent.

19. I am satisfied that pursuant to cl 2.7 of the WLEP, demolition may be carried out with development consent.

20. I am satisfied that pursuant to cl 4.3 of the WLEP - Height of buildings, the relevant development standard for the site is 13.5m. The parent DA was granted consent for a building of 14m in height and the MA does not seek an increase in height.

21. I am satisfied that pursuant to cl 4.4 of the WLEP - Floor space ratio (FSR), the relevant development standard is 1.3:1. The parent DA complied with the FSR development standard. The first modification (DA136/2023/2) approved an increase in Gross Floor Area (GFA) resulting in an FSR of 1.7:1. The subject MA seeks to reduce the approved GFA by 4 sqm.

22. The parties agree, and I am satisfied, that the amended MA remains consistent with each of the other relevant jurisdictional matters set out in the WLEP as follows:

23. Clause 5.10 - Heritage conservation - the site is not a listed heritage item and is not situated within a Heritage Conservation Area.

24. Clause 5.21 - Flood planning - The site is not identified as being flood affected.

25. Clause 6.1 - Acid sulfate soils - the site is situated within a Class 5 area as mapped in the WLEP. The amended MA does not propose any works that require further consideration of this issue.

26. Clause 6.2 - Earthworks - the amended MA proposes minor additional earthworks. In support of this, the Applicant has provided a geotechnical report, prepared by Crozier and dated 7 March 2024. This report is agreed to adequately address the matters set out in cl 6.2 of the WLEP.

27. Clause 6.9 - Tree canopy cover in Zones R2 and R3 - the amended MA does not result in the loss of any trees or canopy beyond that already approved in the parent DA.

28. 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. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

29. The parties agree, and I am satisfied, that pursuant to s 100(3) of the EPA Reg, the amended MA must be accompanied by a BASIX certificate. Accordingly, the Applicant has provided a BASIX Certificate No. 1385701M_05 dated 28 February 2025. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

30. The parties agree, and I am satisfied, that the amended MA remains subject to the provisions of ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Relevantly, s 147 of SEPP Housing requires the consent authority to consider a range of matters prior to modifying the parent DA.

31. Accordingly, and pursuant to s 102 of the EPA Reg, the Applicant's architect MHND Union (nominated architect Brian Meyerson, NSW registered architect 4907) has prepared a Design Verification Statement confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the design quality principles set out at Sch 9 of SEPP Housing and the objectives of Pts 3 and 4 of the NSW Apartment Design Guide have been achieved.

32. 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. Chapter 6 of SEPP BC deals with water catchments. The site is situated on land identified as being within the Sydney Harbour Catchment, but is situated outside the Foreshores and Waterways Area. Relevant provisions of SEPP BC were satisfied in the assessment of the parent DA and continue to be managed by the imposition of conditions of consent.

33. 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.

34. The Court notes that:

35. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.

36. The Applicant has lodged the amended MA with the Court on 20 June 2025.

Orders

30. The Court orders that:

31. Leave is granted to the Applicant to amend Modification Application DA136/2023/4 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

32. Modification Application DA136/2023/4 (as amended), for internal amendments to comply with fire safety requirement, additional fire egress stairs, reconfiguration and relocation of the basement and parking, and associated landscaping to the approved building at 206B Victoria Road Bellevue Hill, is determined by way of approval.

33. Development Consent DA136/2023/1 is modified subject to the conditions of consent set out at Annexure A.

34. Development Consent DA136/2023/1 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

Annexure A (226 KB, pdf)

Annexure B (930 KB, pdf)

Architectural Plans (9.98 MB, pdf)

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