Drumalbyn B Pty Ltd & Ors v Woollahra Municipal Council

Jurisdictional Prerequisites

1. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.
2. I am satisfied that owners consent accompanied the development application.
3. The modification application was lodged with the Respondent on 6 April 2023 pursuant to s 4.56 of the EPA Act.
4. Section 4.56(1)(a) of the EPA Act requires that a modification application (MA) be substantially the same development as the development for which development consent was originally granted. The parties agree and I am satisfied that the proposed modifications are substantially the same development as that approved by the Court. I have considered the original development consent, architectural plans and documentation the subject of these proceedings. From a quantitative and qualitive analysis, the amended MA results in one additional unit, is consistent with the approved height, maintains similar side setbacks, maintains a similar amount of landscaping and maintains the approved use as a seniors living development. Whilst I note that additional excavation will occur as a result of the amended MA, I am satisfied that the amended MA does not radically change the development as originally approved and is substantially the same.
5. The Respondent notified the development application between 26 April to 11 May 2023 in accordance with the Woollahra Community Participation Plan 2019. The parties advised the Court that the Respondent notified or made reasonable attempts to notify people who had made a submission to the original development application in accordance with s 4.56(1)(b) and (c).
6. Fifteen submissions were received, and oral objections were made at the section 34 conciliation conference. The written and oral objections have been considered by the consent authority in accordance with s 4.56(1)(d).
7. Section 4.56(1A) of the EPA Act requires that the consent authority must take into consideration the reasons given by the consent authority, in this instance the Court, for the grant of the consent. I have considered the reasons for the grant of consent within proceedings RNB Property Group Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1012.
8. Section 4.56(1A) of the EPA Act requires that the consent authority must take into consideration the matters referred to in s 4.15(1) and I consider these matters, where they are jurisdictional and relevant to the amended MA, below.