DRA (AUS) Pty Ltd v Woollahra Municipal Council

Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. DA2024/283/1, as amended, for alterations and additions to an existing residential flat building to construct an external stair for the purpose of improving access to and from Level 6 and 7 for repairs, maintenance and safety, and ancillary works is determined by the grant of consent subject to the conditions at Annexure A.
(3) In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away by the amendment in the agreed sum of $7,500 within 28 days of the date of this order.

Catchwords: DEVELOPMENT APPEAL – alterations and additions to an existing residential flat building – justification of contravention of height of building development standard – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Strata Scheme Management Act 2015 (NSW), s 36
Environmental Planning and Assessment Regulation 2021 (NSW), s 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6, ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Woollahra Local Environmental Plan 2014, cl 4.3, 4.4, 4.6, 5.10

Cases Cited: Wehbe v Pittwater Council (2007) NSW LEC 827

Category: Principal judgment

Parties: DRA (AUS) Pty Ltd ACN 613 174 020 (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
S Black (Solicitor)(Applicant)
S Hill (Solicitor)(Respondent)
Solicitors:
Carroll and O’Dea Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/110592

Publication restriction: Nil

Judgment

1. COMMISSIO****NER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA2024/283/1 seeking consent for alterations and additions to an existing residential flat building (Proposed Development) at 2B Wentworth Street, Point Piper legally described as SP6534 (the Site).

2. The parties explain that the Proposed Development will result in the ability to access to the roof from a common property area, rather than via an apartment. The alternations and additions are described as the construction of an external stair for the purpose of improving access to and from Level 6 and 7 for repairs, maintenance and safety, and ancillary works.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 10 October 2025. I presided over the conciliation conference.

4. On 8 August 2025, the parties participated in an earlier conciliation conference pursuant to s 34 of the LEC Act, during which the parties undertook without prejudice discussions after hearing from an objector.

5. Following the earlier s 34 conference, the Applicant provided Council with amended Architectural Plans and an amended Clause 4.6 Variation Request as listed below at [25]. Council reviewed the amended material, and notified it to the objector from 27 August 2025 until 11 September 2025, during which a submission was received from the objector which raised similar matters to those previously raised. However, the objector did provide some comments regarding the operational plan of management proposed by the conditions, and the parties agreed to amend the conditions being the requirement at Condition D.6(a)(v), D.7 and H.3 to address these comments. That same objector made further oral submissions on 10 October 2025 regarding similar matters previously raised.

6. The parties considered the merit issues raised by the objector and ultimately the Respondent considered that the Development Application, as amended, was acceptable and capable of being granted consent.

7. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

8. 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. 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 in dispute between the parties.

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

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) regarding the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.

11. The Class 1 Application includes written owner's consent in the form of a letter provided by Daniel Russell-Cooper, Licensed Strata Manager of GK Strata dated 15 July 2024, on behalf of the Owners Corporation, which although is addressed to the incorrect Council, does not affect the substance of the letter, namely consent to lodgement of the Development Application within the meaning of s23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (NSW). For the avoidance of any doubt, the Applicant has filed with the Court additional documentation in the form of meeting minutes and a certificate to confirm Mr Russell-Cooper's authorisation to provide consent in accordance with a Strata Committee meeting resolution pursuant to its functions as a strata committee in s 36 of the Strata Scheme Management Act 2015 (NSW).

12. The Site is zoned R3 Medium Density Residential under the WLEP. Residential Flat Buildings are permissible with consent in the zone.

13. Clause 4.3(2) of the WLEP sets a maximum height of building (HOB) development standard for the Site at 13.5m. As the existing building has a height of 24.91m, the Proposed Development will contravene the maximum HOB. Accordingly, the Applicant relies on a written request pursuant to cl 4.6 of the WLEP prepared by Derek Raithby Architecture and Planning dated 25 August 2025 (Written Request), to justify the contravention of the maximum HOB development standard of cl 4.3 of the WLEP. The Council considers the Written Request to be acceptable because the existing residential flat building has a height of 24.91m and the Proposed Development:

14. does not increase this height;

15. will be back from the parapet;

16. will not be discernible from the existing glazing; and

17. will be largely contained within the current building footprint.

18. The parties consider that there are sufficient planning grounds to justify a contravention of the standard, and that in the circumstances it is unreasonable and unnecessary to require compliance with the maximum height standard.

19. To demonstrate why compliance with the development standard is unreasonable or unnecessary in the circumstances, the Written Request relies on the first method set out by Preston CJ in Wehbe v Pittwater Council (2007) NSWLEC 827, being that the objectives of the standard are achieved notwithstanding non-compliance with the standard. The Written Request provides as follows:

“In this regard, it is noted that any such will not be inconsistent with the objectives of the maximum building height standard per cl 4.3(1) of the WLEP as the proposed departure from the development standard:

with the change for a access hatch and alteration to the balustrade, involves no decernable increase in exisiting height/ envelope and will not be visible from the public domain;

remains consistent with the character and amenity of the existing building as it does not involve any change to the external building envelope roof features or the creation of additional habitable space; and

will not adversely affect the visual or acoustic privacy or adjoining properties; and

will not result in any increase in overshadowing, overlooking, or loss of solar access of adjoining properties.

Will provide posive benefits in repair and mainenatnce, and economic use.” (sic)

16. The Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole.

“The works are necessary to meet the object of the act, specifically, clause 1.3 (h) to allow access for repair and maintenance of the building (including new or upgraded services).”

“The portion of non-compliant building height is restricted to roof access hatch which is setback from the parapet. It is not visible nor will it impact surrounding development. Therefore, the proposed building height, inclusive of the minor portion of height variation (that is partially technical) provides an appropriate height on the subject site compatible with surrounding development.”

“The proposed access hatch for repair and maintenance (including new or upgraded services)of the subject common property is situated below the existing maximum building height (lift overrun), however, if installed it will exceed the parapet by 75mm (RL59.285). It is worth noting that the access hatch is setback from the parapet and therefore not visible from the public domain.”

“The proposal allows for the sustainable management of built heritage, promotes good design by achieving a contextually appropriate alteration that does not exceed the height of the existing building and the development promotes the orderly and economic use and development of the land.”

17. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the WLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP.

18. Clause 4.4(2) provides that the Site has a maximum FSR of 1.3:1 however the Proposed Development does not affect the FSR.

19. The Site is not a heritage item and is not in a heritage conservation area: cl 5.10, WLEP. Although there are surrounding heritage items, the works proposed will not be discernible from the existing glazing. The parties therefore agree there is no heritage impact.

20. The Site is located within the Sydney Harbour Catchment boundary. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to water catchments including the Sydney Harbour Catchment. Section 6.6(2) requires a consent authority to be satisfied that the development ensures:

(a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and (b) the impact on water flow in a natural waterbody will be minimised.

21. The Court is satisfied that the Development Application does not propose to amend the existing onsite stormwater management system, and, together with Conditions such as D.2, E.2, F.6, F.8 and F.9, there will be no effect on the quality of stormwater as a result of the Proposed Development.

22. Before granting consent, a consent authority is required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) to consider whether the land is contaminated, and if so, whether it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use. No works are proposed to occur to the ground, and the use is not changing and the Site has existed as a residential use for a prolonged period of time since the mid 1950’s having been constructed in 1932: Statement of Environmental Effects dated July 2024 filed with the Class 1 Application. The parties have also agreed to conditions F.2 and F.16.

23. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties and in the Written Request in relation to the contravention of the HOB development standard as I have set out in this judgment.

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

25. The Court notes that:

26. Woollahra Municipal Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2024/283/1 in accordance with the documents below:

| Reference | Description | Author | Date | | A00 (Rev 6) | Cover Sheet | Derek Raithby Architecture | 08.2025 | | A01 (Rev 6) | Site Analysis Plan | Derek Raithby Architecture | 08.2025 | | A02 (Rev 6) | Floor Plans | Derek Raithby Architecture | 08.2025 | | A03 (Rev 7) | Elevation | Derek Raithby Architecture | 08.2025 | | A04 (Rev 7) | Section | Derek Raithby Architecture | 08.2025 | | | Clause 4.6 Request to Vary Building Height Standard | Derek Raithby Architecture & Planning | 25.08.2025 | | | Letter of consent from Strata Manager | Daniel Russell-Cooper GK Strata Management | 15.07.2024 | | | Certificate and attachments - (Owners consent to DA) | Daniel Russell-Cooper GK Strata Management | 26.09.2025 |

2. The Applicant filed a copy of the material referred to in the above table with the Court on 30 September 2025.

Orders:

26. The Court orders:

27. The appeal is upheld.

28. Development Application No. DA2024/283/1, as amended, for alterations and additions to an existing residential flat building to construct an external stair for the purpose of improving access to and from Level 6 and 7 for repairs, maintenance and safety, and ancillary works is determined by the grant of consent subject to the conditions at Annexure A.

29. In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away by the amendment in the agreed sum of $7,500 within 28 days of the date of this order.

I certify that this and the preceding [6] pages are a true copy of my reasons for judgment.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (318 KB, pdf)

**********