Cooper View Developments Pty Ltd v Woollahra Municipal Council

Category: Principal judgment

Parties: Cooper View Developments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2024/439843

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of Modification Application 166/2023/2, made directly to the Court pursuant to s 4.55 (8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application seeks to modify development consent DA 166/2023/1, which permitted the demolition of three existing dwelling and the construction of a thirteen (13) unit residential apartment building with basement carparking, landscaping and other works at 214-218 Victoria Road, Bellevue Hill.

2. The modification application includes internal reconfiguration at all levels, extension to units to the rear and/or the front, the conversion of one dual key unit into two separate units, and the provision of a roof terrace to service the top level units. Although the majority of the proposed extensions will be located within the approved building envelope, due to extensions to the edge of the top level units and the addition of the balustrade for the roof terrace, the modified design will increase the overall height of the building from 14.29m to 15.79m. The floor space ratio (FSR) will also increase from 1.31:1 to 1.56:1.

3. 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 15 April 2025. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court approving the application to modify the consent in accordance with the modification application.

4. During the conciliation conference, the Council agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the modification application to adequately respond to the Council’s contentions. In summary, the amendments to the application include:

5. Reconfiguration of the bicycle parking and basement storage

6. Revised storage and tree canopy calculations

7. Permeable paving/decking to units 1 & 2 private open space proposed

8. Revised layouts to units 6 and 9 to include linen store.

9. Revised landscape plans.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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(8) of the EPA Act to modify the development for which consent was originally granted by the Court.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

12. The requested modification will not alter the building use, number of floors, or amenity impacts. The building will maintain the same envelope as the increase in floor space is largely the result of the infill of parts of balconies, and areas previously described as ‘articulation zones’. On this basis, pursuant to the requirements of s 4.55(2) of the EPA Act, I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

13. No further consultation is required pursuant to the requirements under EPA Act s 4.55(2)(b), and the application was notified as required under s 4.55(2)(c) between 4 and 19 December 2024. Two submissions were received during this time, and two speakers made oral submissions at the commencement of this conciliation conference. Prior to the conference, with the consent of the applicant, the objectors were provided with the amended plans which now form the amended application before the Court. The issues raised include:

14. Noise control measures

15. Working hours

16. Inaccuracy of documentation

17. Acoustic and visual privacy

18. Excessive FSR

19. Excessive height

20. Solar access

21. The parties have taken me through the matters relating to each issue raised and I am satisfied that all submissions made concerning the proposed modifications have been considered. In particular, I am satisfied that the proposed development will not have any adverse impacts on privacy, which was a point of some focus in the on-site submissions made, due to the set back of the proposed roof terrace. The roof terraces are fully enclosed with no gates or access beyond. The roof is otherwise non-trafficable, as per the application and the parties’ agreement.

22. Based on the information contained in the parties’ submissions and the original judgment of the Court at Cooper View Developments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1122, I am satisfied that the reasons given by the consent authority for the grant of consent that is sought to be modified have been considered.

23. Based on the information contained in the Statement of Environmental Effects, the Class 1 application and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(3) and that there is no jurisdictional impediment to the granting of consent.

24. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. The Court notes that:

26. Woollahra Municipal Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its modification application in accordance with the documents below:

| Reference | Description | Author/Drawn | Date(s) | | S34 001 Rev 01 Location S34 002 Rev 02 Site Plan S34 100 Rev 03 Basement Plan S34 101 Rev 03 Level 1 Plan S34 102 Rev 02 Level 2 Plan S34 103 Rev 03 Level 3 Plan S34 104 Rev 03 Level 4 Plan S34 105 Rev 02 Level 5 Plan S34 106 Rev 02 Roof Plan S34 107 Rev 02 Adaptable Units S34 200 Rev 02 Elevations 01 S34 201 Rev 02 Elevations 02 S34 300 Rev 02 Sections 01 S34 301 Rev 02 Sections 02 S34 302 Rev 02 Section 03 S34 502 Rev 03 Storage Calculations | Architectural Plans | SRH Architecture PTY LTD | 25/02/25 | | 1386429M_04 | BASIX Certificate | NSW Department of Planning and Environment | 01/04/25 | | LPS34-24/100: 1 Rev F 2 Rev F 3 Rev F 4 Rev F 5 Rev F 6 Rev F | Landscape Plan | Conzept Landscape Architects | 25/02/25 |

And other documents

(a) Design verification certificate prepared by SRHA dated 3 April 2025 (b) Embodied Emissions Material Form prepared by Berco Consulting dated 1 April 2025

14. The Court orders:

15. Modification Application 166/2023/2 is granted.

16. Development consent DA166/2023/1 granted by the Land and Environment Court on 19 March 2024 is modified in the terms in Annexure A.

17. Development consent DA166/2023/1 as modified by the Court is Annexure B.

E Washington

Commissioner of the Court

Annexure A (181 KB, pdf)

Annexure B (1.28 MB, pdf)

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