Double Bay HSN Project Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 4.55
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 98, 100, 102, 113
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6
State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2

Cases Cited: Double Cross Holdings Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1359

Texts Cited: NSW Apartment Design Guide

Category: Principal judgment

Parties: Double Bay HSN Project Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

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

File Number(s): 2024/422014

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), these proceedings concern a Modification Application DA476/2022/3 (the MA) made directly to the Court by Double Bay HSN Project 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 modify Development Consent DA476/2022/1 (the parent DA), which comprises the demolition of existing building and construction of a new six-storey shop top housing development with two levels of basement car parking and ancillary works on land at 12 Cross Street, Double Bay (the site).

3. Consent for the parent DA was granted by the Court on 28 June 2024, with the agreement of the parties, in proceedings Double Cross Holdings Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1359.

4. The MA was lodged with the Court on 13 November 2024 and at that date sought approval to modify the parent DA to make internal and external modifications to the approved shop top housing development, including:

5. At Level 4 - an enlarged living area, modified bedroom and bathroom layout, new circulation corridor between northern and southern terraces, extension of southern building wall into Level 4 balcony space and corresponding reduction of the Knox Lane rear setback by approximately 1m at master bedroom, reduced width of rear balcony at master bedroom, and increased width of rear balcony at bedroom two through reduction in planter box width.

6. At Level 5 - an enlarged living area, modified bedroom and bathroom layout, new corridor to south-facing window, extension of southern building wall into Level 5 balcony space and corresponding reduction of the Knox Lane rear setback by approximately 1m at master bedroom with new Juliet balcony, and extension of northern building wall into the Level 5 balcony space and the Cross Street front setback by approximately 1.7m at dining area.

7. At Roof Terrace - reconfiguration of roof terrace and skylight layout to accommodate the Level 4 and 5 modifications.

8. 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 30 April, 13 May, 22 May, 6 June, 18 June and 26 June 2025. I presided over the conciliation conference.

9. 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.

10. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included concerns for inconsistencies between the MA and the reasons for the grant of consent to the parent DA, incompatibility with the desired future character of the local area, insufficient building articulation and associated impacts of increased building bulk, a failure to meet the Design Quality Principles set out at Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), the further exceedance of the floor space ratio (FSR) control, and concerns for view impacts, acoustic and visual privacy.

11. Agreed design amendments include the reconfiguration of bedrooms at Levels 4 and 5 to result in a better-articulated building form and mass, particularly as the proposed building addresses the neighbouring approved development at 10 Cross Street and along the sites’ shared boundary which provides a pedestrian through site link. Towards Cross Street, the primary facade has been amended to present the upper two levels as a more singular, composed architectural portal. Together these amendments are agreed to resolve the issues in this matter.

12. 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.

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

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

15. The parties agree, and I am satisfied, that the MA was notified between 26 February 2025 and 13 March 2025 in accordance with the Respondent’s Community Participation Plan. The Respondent received one submission in response to notification. Concerns raised in this submission have been considered by the Respondent during conciliation.

16. 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 any submissions received have been appropriately considered.

17. 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 some relatively minor adjustments to the building form within the front and rear setbacks. The additional floorspace provided within the enlarged building envelope does not result in unacceptable amenity impacts on adjoining neighbours or the streetscape. Similarly, the additional floorspace does not create additional view loss or privacy impacts, and results in only minor additional overshadowing. The use as a shop top housing development comprising five 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.

18. 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 appropriately considered by the parties in reaching their agreement in this matter.

19. The Court’s reasons for the original grant of consent to the parent DA (which also involved agreed amendments between the parties) included the amended design’s improved relationship to the site, its context and the desired future character of Cross Street, and the redistribution of building form and mass across the site to maintain the existing pedestrian through site link between Cross Street and Knox Lane. Changes were also made to improve internal residential amenity and to mitigate against cross viewing. These agreed amendments had the effect of reducing the scale, form and mass of the proposed building.

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

21. Consistent with the parent DA consent, I am satisfied that the site is zoned E1 Local Centre pursuant to cl 2.3 WLEP. Development for the purposes of shop top housing is permissible with consent.

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

23. I am satisfied that pursuant to cl 4.3 of the WLEP - Height of buildings - the relevant development standard for the site is 14.7m. The parent DA was granted consent for a building of 20.65m in height and the MA does not seek any further increase in building height.

24. I am satisfied that pursuant to cl 4.4 of the WLEP - FSR - the relevant development standard is 2.5:1. The parent DA was granted consent with an FSR of 3.02:1 exceeding the development standard. The MA seeks a further increase to the gross floor area that results in an FSR of 3.11:1.

25. Despite this increase in FSR, the parties agree, and I am satisfied, that the objectives of cl 4.4 of the WLEP continue to be met by the amended MA. These objectives include to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale, and to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain.

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

27. 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:

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

29. Clause 5.21 - Flood planning - The site is identified as being flood affected, however the amended MA does not alter the existing basement or ground level configuration, which was approved in the parent DA with an appropriate flood risk assessment report and flood management measures in place.

30. Clause 6.1 - Acid sulfate soils - the site is situated within a Class 2 area as mapped in the WLEP. The Applicant provided an Acid Sulfate Soil Management Plan with the parent DA. The amended MA does not propose any works that require further consideration of this issue.

31. Clause 6.2 - Earthworks - the amended MA proposes no additional earthworks beyond those already approved. The matters set out in cl 6.2 of the WLEP were given consideration at the time the parent DA received consent. Conditions are imposed to appropriately manage excavation of the site and any impacts arising for surrounding neighbours.

32. 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, and consistent with the parent DA consent, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for commercial and residential purposes unlikely to be contaminated.

33. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 100 of the EPA Reg, a BASIX certificate, 1802695M, dated 3 July 2025, has been provided with the final amended MA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

34. 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.

35. 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 (dated 24 June 2025) 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.

36. 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.

37. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the amended MA does not propose the removal of any additional trees or vegetation beyond that already granted consent in the parent DA.

38. 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.

39. 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.

40. 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.

41. The Court notes that:

42. 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.

43. The Applicant has lodged the amended MA with the Court on 4 July 2025.

Orders

35. The Court orders that:

36. Leave is granted to the Applicant to amend Modification Application DA476/2022/3 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

37. Modification Application DA476/2022/3 (as amended), for internal and external modifications at levels 4 and 5 of the approved multi-storey shop top housing development with basement parking, at 12 Cross Street, Double Bay, is determined by way of approval.

38. Development Consent DA467/2022/1 is modified subject to the conditions of consent set out at Annexure A.

39. Development Consent DA467/2022/1 (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 (134 KB, pdf)

Annexure B (999 KB, pdf)

Architectural plans_Part1 (34.5 MB, pdf)

Architectural plans_Part2 (36.1 MB, pdf)

Architectural plans_Part3 (25.9 MB, pdf)

Architectural plans_Part4 (20.6 MB, pdf)

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