Darling Point 1 Pty Limited v Woollahra Municipal Council

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Woollahra Community Participation Plan

Category: Principal judgment

Parties: Darling Point 1 Pty Limited (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/245891

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Darling Point 1 Pty Limited (the Applicant), against the deemed refusal of Modification Application DA2/2017/13 (the MA) by Woollahra Municipal Council (the Respondent).

2. The MA seeks to further modify Development Consent DA2/2017 (the parent DA), which comprises the demolition of existing buildings, lot consolidation, construction of a seven-storey mixed-use development with basement car parking and the construction of an underground vehicular turn-table and the associated mechanism for basement car parking stackers, at 80, 84 and 90 New South Head Road, and 1 and 9 Mona Road, Darling Point (the site).

3. Consent for the parent DA was granted by the Respondent on 19 April 2018. A number of earlier modifications to the parent DA have been approved by the Respondent since 2021. One earlier modification to the parent DA has been approved by the Court in 2023.

4. The subject MA was lodged with the Respondent on 14 January 2025 and at that date sought approval to modify the parent DA to extend the approved rooftop terrace, reconfigure the spa pool stairs and reconfigure the barbecue area and approved planters.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 10 November 2025. I presided over the conciliation conference.

6. 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.

7. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included concerns for the further exceedance of the relevant height of building development standard, detrimental impacts on the visual amenity of the local streetscape and neighbouring properties, and visual privacy and cross viewing impacts associated with the rooftop terrace.

8. Agreed design amendments include making reductions to the extent of trafficable area associated with the rooftop terrace, lowering of the spa pool by 190mm, replacement of the proposed stair and planter box around the pool with a ladder, relocation of balustrades at the rooftop terrace level to situate these further from the building perimeter, changing the balustrade design to a palisade fence type, and other clarification to identify the maximum building height. Together these amendments are agreed to resolve the issues in this dispute.

9. 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.

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

11. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), 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.

12. The parties agree, and I am satisfied, that the MA was publicly notified between 5 and 20 February 2025 in accordance with the Respondent’s Community Participation Plan. The Respondent received five submissions in response to this notification raising concerns for acoustic and visual privacy, view loss, intensification of the usage of the roof terrace, and the impacts of additional building height.

13. At the commencement of the conciliation conference, at the site on the morning of 10 November 2025, one affected local resident addressed the Court to restate their concerns, and the Court visited an adjacent property to directly observe building separation, privacy and cross viewing relationships.

14. The parties agree, and I am satisfied, that concerns raised in written submission have been given consideration during the conciliation process.

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

16. 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 development within largely the same building envelope as the parent DA, apart from relatively minor adjustments to the alignment of the uppermost roof terrace balustrading. The use as a seven-storey shop top housing development comprising residential apartment dwellings above a retail tenancy remains the same, and the appearance of the building is largely unchanged by the amended MA, resulting in a development that presents to the surrounding context in a similar manner as the parent DA.

17. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Respondent for the grant of consent to the parent DA have been appropriately considered by the parties in reaching their agreement in this matter.

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

19. Consistent with the parent DA consent, I am satisfied that the site is zoned MU1 Mixed Use pursuant to cl 2.3 WLEP. Development for the purposes of shop top housing is permissible with 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 23.5m. The parent DA was granted consent for a building of 24.6m in height, and the amended MA now seeks a minor further increase in building height. This additional building height comes about by virtue of the proposed spa pool balustrade being moved horizontally to expand the trafficable roof terrace area relative to the site’s falling topography at street level below.

21. In any case, the amended MA may be granted approval, notwithstanding a breach of these applicable development standards.

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

23. Similarly, the parties agree, and I am satisfied, that the amended MA does not seek to modify the parent DA to an extent that would require further assessment against relevant provisions of the following environmental planning instruments:

24. State Environmental Planning Policy (Resilience and Hazards) 2021

25. State Environmental Planning Policy (Sustainable Buildings) 2022

26. State Environmental Planning Policy (Housing) 2021

27. State Environmental Planning Policy (Biodiversity and Conservation) 2021

28. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended MA warrants the grant of consent, subject to the imposition of conditions.

29. 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.

30. The Court notes that:

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

32. The Applicant has lodged the amended MA with the Court on 7 November 2025.

33. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the MA in the agreed sum of $2,000 (not including GST).

Orders

27. The Court orders that:

28. Leave is granted to the Applicant to amend Modification Application DA2/2017/13 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

29. The appeal is upheld.

30. Development Consent DA2/2017 is modified subject to the conditions of consent set out at Annexure A.

31. Development Consent DA2/2017, 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 (138 KB, pdf)

Annexure B (842 KB, pdf)

Architectural Plans (28.5 MB, pdf)

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Amendments

08 December 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendment made to the amount of costs agreed at paragraph [26(3)] of the judgment, from $20,000 to $2,000 (not including any GST).