Cropper v Woollahra Municipal Council

Representation: Counsel:
G Shapiro (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/202082

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Respondent’s refusal of the Applicant’s modification application seeking to modify development consent DA No. 233/2024/1 granted by Woollahra Municipal Council for alterations and additions to an existing dwelling house and ancillary building to the rear (car parking and loft above) at 102 Windsor Road, Paddington, NSW (Lot 1 DP 432337).

2. Development consent was granted to DA No. 233/2024/1 by Woollahra Municipal Council on 23 October 2024.

3. Modification Application DA No. 233/2024/2 was lodged with Council on 17 April 2025 seeking modifications to the approved development.

4. The Modification Application was notified from 7 May to 25 May 2025; no submissions were received.

5. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 27 May 2025.

6. The Modification Application was refused by Woollahra Municipal Council on 20 June 2025.

7. At the Court-arranged conciliation conference between the parties, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), and on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement was submitted to the Court on 8 September 2025, in accordance with s 34(10) of the LEC Act.

8. Generally, the agreement approves the modified development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

9. The parties agreed the amendments made during the conciliation conference which resolved the Respondent’s contentions and gave rise to the agreement included:

10. Retention of elements to the rear of the stable building previously proposed to be demolished.

11. Amended fenestration to the front elevation.

12. Reduction in the height of the proposed eastern parapet to the ground floor rear wing addition.

13. Front fence detailing.

14. Amendments to rear dormer windows.

15. Provision of privacy screens to nominated first floor windows.

16. 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.

17. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

18. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent.

19. I have considered the Jurisdictional Statement and its referenced documents, the Class 1 Application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

20. I formed an opinion of satisfaction, based on the above, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Environmental Planning and Assessment Act 1979 (NSW)

15. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent on application being made 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 development” as the development for which consent was originally granted.

16. The parties agree, and I am satisfied that the development as proposed to be modified by the Modification Application will remain substantially the same as the development originally granted by the Consent prior to any modification, having regard to the following:

17. The bulk, scale, maximum building height and setbacks will largely correspond with the development originally granted consent.

18. The modifications will not result in any adverse view or privacy impacts.

19. Pursuant to s 4.55(3) of the EPA Act, I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified which include:

20. It is considered to be satisfactory with all relevant planning policies including the objectives of the Woollahra Local Environmental Plan 2014, (WLEP) and the Woollahra Development Control Plan 2015 (WDCP).

21. It will not have adverse effects on the local built and natural environment nor any adverse social and economic impacts in the locality.

22. All likely impacts to adjoining properties including any submissions made have been addressed in the report, or are considered to be satisfactory.

23. The site is suitable for the proposed development.

24. The proposal is in the public interest.

25. The Modification Application, as amended, is consistent with the above reasons. Accordingly, I am satisfied that the relevant matters specified in s 4.15(1) of the EPA Act have been considered and addressed by the Modification Application.

Environmental Planning and Assessment Regulation 2021 (NSW)

19. The parties agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) have been considered and are satisfactorily addressed.

20. The Modification Application was made with the consent of the owner of the subject site in compliance with the EPA Regulation.

21. An amended BASIX Certificate has been prepared as part of the amended Modification Application, in respect of the requirement for a BAXIX Certificate under s 100(3) of the EPA Regulation.

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The proposed development is a BASIX development as defined in s 27 of the EPA Regulation and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) apply. The development application was accompanied by a BASIX certificate (certificate number A17524200 (dated 20 June 2024). A new BASIX certificate for the amended development was filed with the Court on 8 September 2025 (certificate number A1809948 (dated 25 August 2025)) in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.

24. Chapter 6.2 – Development in Regulated Catchments – applies to the site as the site is located within a regulated catchment (Sydney Harbour Catchment).

25. Chapter 6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent Council or the Court on appeal has considered matters including:

(a) whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, (b) whether the development will have an adverse impact on water flow in a natural waterbody, (c) whether the development will increase the amount of stormwater run-off from a site, (d) whether the development will incorporate on-site stormwater retention, infiltration or reuse,

26. I am satisfied these matters have been considered and addressed through the implementation of the Stormwater Plans which were approved in DA No. 233/2024/1, along with the conditions of consent, including the those regarding erosion and sediment control, stormwater, and flood risk management (Annexure A).

State Environmental Planning Policy (Resilience and Hazards) 2021

27. On the basis that the subject site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the subject site, I accept that the subject site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

Woollahra Local Environmental Plan 2014

28. Woollahra Local Environmental Plan 2014 (WLEP) applies to the subject site, which is within the Woollahra Local Government Area (WLEP, cl 1.3).

29. The subject site is located within the R2 Low Density Residential zone. The proposed development is permissible with consent in the R2 Low Density Residential zone. Pursuant to cl 2.3 of the WLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:

30. To provide for the housing needs of the community within a low density residential environment.

31. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

32. To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

33. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

34. To ensure development conserves and enhances tree canopy cover.

35. The parties agree and I am satisfied that the DA as amended remains within the height standard at cl 4.3 of WLEP.

36. The site is located within the Paddington Heritage Conservation Area. The parties agree and I am satisfied that the modification proposed is acceptable having regard to the objectives in cl 5.10 (Heritage Conservation) of the WLEP. In support of this I note the Heritage Impact Statement (prepared by Zoltan Kovacs Architects, dated 19 March 2025) submitted as part of the Modification Application, and that the modifications as amended retain more of the stables structure to the rear of the site.

37. The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the Acid Sulfate Soils Map at cl 6.1 of the WLEP. I accept the advice of the parties that, as the subject works are not within 500 m of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an ASS management plan is not required, and that the proposed development is consistent with cl 6.1 of the WLEP.

38. Clause 6.2 (Earthworks) of the WLEP applies to the subject site. I am satisfied that the implementation of the Geotechnical Report (prepared by Crozier Geotechnical Consultants, dated 27 May 2024) and the agreed conditions of consent, address and satisfy the matters to be considered at cl 6.2(3).

Conclusion

34. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

35. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

36. In making the orders to give effect to the agreement between the parties, I was not required to and have not made any merit assessment of the issues that were originally at dispute between the parties.

37. The Court notes that

38. The Respondent, Woollahra Municipal Council, as the relevant consent authority, has agreed under cl 113 of the Environmental Planning and Assessment Act 1979 (NSW) to the Applicants amending the Modification Application No. DA 233/2024/2 in accordance with the documents listed below:

| Document | Prepared by | Date | | DA_00 - Cover Sheet, Revision D | Luigi Rosselli Architects (LRA) | 25 August 2025 | | DA_02 – Site & Roof Plan, Revision D | LRA | 25 August 2025 | | DA_03 – Ground Floor Plan, Revision E | LRA | 25 August 2025 | | DA_04 – First Floor Plan, Revision D | LRA | 25 August 2025 | | DA_05 – Attic Plan, Revision D | LRA | 25 August 2025 | | DA_06 – Sections & Elevations 1, Revision D | LRA | 25 August 2025 | | DA_07 – Sections & Elevations 2, Revision E | LRA | 25 August 2025 | | DA_08 – Sections & Elevations 3, Revision E | LRA | 25 August 2025 | | DA_09 – Schedule of Finishes, Revision D | LRA | 25 August 2025 | | BASIX Certificate No. A1809948 | LRA | 25 August 2025 |

Orders

38. The Court orders that:

39. The appeal is upheld.

40. Modification Application DA No. 233/2024/2 is granted, in accordance with the terms set out in Annexure A.

41. Development Consent DA No. 233/2024/1 is modified in the terms set out in Annexure B.

N Macken

Acting Commissioner of the Court

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Annexure A

Annexure B