Drumalbyn R Pty Ltd v Woollahra Municipal Council

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide

Category: Principal judgment

Parties: Drumalbyn R Pty Ltd (First Applicant)
Drumalbyn B Pty Ltd (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicants)
J Hewitt (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
HWL Ebsworth (Respondent)

File Number(s): 2025/236115

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the deemed refusal of modification application DA416/2021/14 (Modification Application) that seeks to modify development consent DA416/2021 for alterations and additions to 53 and 55 Drumalbyn Road, Bellevue Hill (the Original Consent).

2. The Original Consent has been modified on a number of occasions.

3. The Modification Application the subject of these proceedings was lodged by the Applicants, Drumalbyn R Pty Ltd (the first applicant) and Drumalbyn B Pty Ltd (the second applicant) (together the Applicants) with the Court on 20 June 2025, under s 4.55(8) of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, on 29 September 2025. I presided over the conciliation conference, at which the parties agreed to certain amendments that would resolve the contentions, subject to an adjournment be granted to document those amendments. I granted the adjournment.

5. A signed agreement was submitted to the Court on 29 October 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the modification application.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

8. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I consider the jurisdictional preconditions that follow.

Environmental Planning and Assessment Act 1979

9. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application 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” as the originally approved development.

10. The Original Consent was granted by the Court on 11 January 2023 for seniors housing development comprising the adaptive reuse of the existing dwellings on the site and alterations / additions to the dwellings to accommodate six units and multi-level underground parking.

11. I accept that the proposal as now amended is substantially the same development as the development for which consent was originally granted for four primary reasons:

12. The development as proposed to be modified is substantially within the same building envelope as the envelope the subject of the Original Consent.

13. Two additional units are now proposed when compared with the development the subject of the Original Consent, including one additional unit in the Modification Application the subject of these proceedings, resulting in a development which is qualitatively and quantitively substantially the same. The additional unit now proposed is wholly located within the 3-dimensional volume of the development fronting Drumalbyn Road, as depicted in yellow in the Section drawings S4.55(8) 300, reproduced in part below:

14. The rear portion of the site in the vicinity of the rock face is retained in the same form but for landscaping improvements, designated by the cloud in the excerpt above.

15. The amendments result in development that is read beyond the site, within the public domain and adjoining properties as a stepped built form and presents as the same development as the development the subject of the Original Consent.

16. As such, I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act.

17. The Modification Application was publicly notified by the Council in accordance with s 4.55(2)(c) of the EPA Act, prior to the conciliation conference convened by the Court on 29 September 2025. Additionally, and by consent of the parties, the amended plans resulting from amendments cited at [4] were also notified to residents, in response to which further written submissions were received, and considered in accordance with s 4.55(2)(d) of the EPA Act.

18. Section 4.55(3) of the EPA Act requires the consent authority or, in this case the Court having received the modification application directly under s 4.55(8) of the EPA Act, to take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application. I do so in the reasons that follow. In upholding the appeal and granting conditional development consent to the development application, I have also considered the reasons given for the grant of consent that is sought to be modified.

Environmental Planning and Assessment Regulation 2021

15. The parties agree that the relevant provisions of the EPA Regulation have been considered and are satisfactorily addressed.

16. The Modification Application has been made by the owners of the site, identified at [3], who provide written consent in accordance with s 100 of the EPA Regulation.

17. An amended design statement has been provided in accordance with s 102 of the EPA Regulation. The statement, authored by Mr Simon Hanson (Arch Reg No 6739) confirms that the development, as modified, complies with the design quality principles and objectives in Parts 3 and 4 of the Apartment Design Guide, and that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development. As such, I am satisfied that the development is consistent with the design principles of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and has been designed with regard to the Apartment Design Guide.

18. On the basis of the above, I am also satisfied that the development as proposed to be modified meets the requirements set out in ss 147 and 148 of the Housing SEPP.

19. In respect of the requirement for a BASIX Certificate under s 100(3) of the EPA Regulation, the parties note the Modification Application is accompanied by an amended BASIX Certificate No 1816612M dated 10 October 2025, which has been provided to the Council as part of the amended Modification Application.

20. The amended BASIX Certificate includes the quantification of embodied emissions attributable to the development, in accordance with s 2.1(5) of State Environmental Planning Policy (Sustainable Buildings) 2022.

Woollahra Local Environmental Plan 2014

21. The site is zoned R2 Low Density Residential according to the Woollahra Local Environmental Plan 2014 (WLEP), as it was at the time the Original Consent was granted. Residential flat buildings are prohibited in the R2 zone. However, the proposed development remains permissible with consent by virtue of Ch 3 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, which is applicable by operation of the savings and transitional provisions in s 2(da) of Sch 7A to State Environmental Planning Policy (Housing) 2021.

22. The parties agree, and I am satisfied, that the proposal as now sought to be modified does not result in change to the height the development, pursuant to cl 4.3 of the WLEP.

23. It is relevant to note that the Council incorporated a floor space ratio development standard into the WLEP on Friday, 14 July 2023 by way of Woollahra Local Environmental Plan 2014 (Amendment No 33). The parties agree that the development as proposed to be modified is consistent with the objectives of cl 4.4 of the WLEP, that are as follows:

(i) to ensure the bulk and scale of new development is compatible with the desired future character of the area, and

(ii) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and

(iii) to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space,

24. The Original Consent was for development with a gross floor area (GFA) of 1,336m2. As now proposed, the GFA is 1,645.84m2 with that additional area located within a previously approved service and plant area, substantially located underground. The parties agree that the additional unit will have limited, if any, impacts on the adjoining properties due to its location within the existing building envelope.

25. The additional unit will not cause overshadowing of any neighbour, privacy concerns, and does not obstruct views. The Modification Application is supported by photomontages which support the agreed position of the parties that the presentation of the development from various vantage points in the public domain will not materially change, given the limited visibility of glazing resulting from the development as modified.

26. The Modification Application is supported by a Heritage Impact Assessment prepared by Mr Zoltan Kovacs Architect dated 17 June 2025. For reasons that are identical to those at [25], and as a result of the location of the additional unit within the envelope approved by the Original Consent, the impacts on heritage are limited, and no adverse impacts result to items of heritage in terms set out at cl 5.10 of the WLEP.

27. While the site is identified on the relevant map at cl 6.1(2) of the WLEP to be located in an area designated Class 5 Acid Sulfate Soils, I do not understand any aspect of the development as is proposed to be modified to disturb the findings made in the Original Consent to the effect that when the site geomorphology, elevation above sea level and lack of groundwater encountered during geotechnical investigation on the site are considered, the site is unlikely to be affected by acid sulfate soils.

28. As no earthworks are proposed by the Modification Application, as amended, those matters to be considered at cl 6.2(3) of the WLEP are not relevant. However, the Court notes that the Applicants relies on Structural engineering plans prepared by SRHA dated 31 January 2025, and on a structural letter dated 3 October 2025 prepared by Dr Richard Barnes that states the proposed amendment in the Modification Application to convert void area into a residential unit does not fundamentally alter the structural solution previously proposed.

29. The Modification Application does not propose the removal of trees. Instead, a new tree is proposed to be planted in the rear setback of the site, identified on the Landscape Plans prepared by Wyer & Co. as a Kentia Palm, with a designation of Tree T13. When the proposed new tree and wider landscape design to the rear of the site, incorporating areas of lawn and landscape plantings, are considered in accordance with cl 6.9(3) of the WLEP, I accept the proposal will go some way to minimising the urban heat island effect.

Conclusion

30. 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.

31. 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.

32. The Court notes that:

33. the Respondent, Woollahra Municipal Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicants amending Modification Application No. DA 416/2021/14 in accordance with the documents listed below:

| Reference | Description | Author/Drawn | Date(s) | | S4.55(8) 001 (Rev.B) | Site Plan | SRH Architecture | 30/09/2025 | | S4.55(8) 100 (Rev.A) | Building A / Basement 2 | 13/06/2025 | | S4.55(8) 101 (Rev.A) | Building A / Basement 1 | 13/06/2025 | | S4.55(8) 102 (Rev.A) | Building A / Lower Ground Floor | 13/06/2025 | | S4.55(8) 103 (Rev.A) | Building A / Ground Floor | 13/06/2025 | | S4.55(8) 104 (Rev.A) | Building A / Level 1 | 13/06/2025 | | S4.55(8) 105 (Rev.A) | Building A / Level 2 | 13/06/2025 | | S4.55(8) 106 (Rev.B) | Building A / Roof – Building B / Ground Floor | 08/10/2025 | | S4.55(8) 110 (Rev.A) | Building B / Level 1 | 13/06/2025 | | S4.55(8) 111 (Rev.B) | Building B / Level 2 | 30/09/2025 | | S4.55(8) 112 (Rev.B) | Building B / Level 3 | 30/09/2025 | | S4.55(8) 113 (Rev.B) | Building B / Roof Plan | 30/09/2025 | | S4.55(8) 200 (Rev.B) | Elevation-Building A/ North West | 30/09/2025 | | S4.55(8) 201 (Rev.B) | Elevation-Building A + Building B / South East | 30/09/2025 | | S4.55(8) 202 (Rev.A) | Elevation-Building A / North East | 13/06/2025 | | S4.55(8) 203 (Rev.A) | Elevation-Building A/ South West | 13/06/2025 | | S4.55(8) 204 (Rev.B) | Elevation-Building B/ North East | 30/09/2025 | | S4.55(8) 205 (Rev.A) | Elevation-Building B/ South West | 13/06/2025 | | S4.55(8) 300 (Rev.B) | Sections-Building A + Building B/Long Section | 30/09/2025 | | S4.55(8) 302 (Rev.A) | Sections-Building A + Building B/Short Section | 13/06/2025 | | S4.56_001 (Rev 03) | Cover Page & Contents | Wyer & Co | 2/10/2025 | | S4.56_002 (Rev 03) | Landscape Installation & Maintenance specification | Wyer & Co | 2/10/2025 | | S4.56_003 (Rev 03) | Landscape Controls & Schedules | Wyer & Co | 2/10/2025 | | S4.56_004 (Rev 03) | Building B - Level 03 | Wyer & Co | 2/10/2025 | | S000 (Rev A) | Cover Page | SRH Architecture Pty Ltd | 1/10/2025 | | S001 (Rev A) | General Notes 1 | SRH Architecture Pty Ltd | 1/10/2025 | | S002 (Rev A) | General Notes 2 | SRH Architecture Pty Ltd | 1/10/2025 | | S003 (Rev A) | General Notes 3 | SRH Architecture Pty Ltd | 1/10/2025 | | S004 (Rev A) | General Notes 4 | SRH Architecture Pty Ltd | 1/10/2025 | | S100 (Rev B) | Excavation shoring | SRH Architecture Pty Ltd | 1/10/2025 | | S101 (Rev B) | Excavation Sequence | SRH Architecture Pty Ltd | 1/10/2025 | | S120 (Rev B) | Building A Basement | SRH Architecture Pty Ltd | 1/10/2025 | | S130 (Rev B) | Building A Lower Ground | SRH Architecture Pty Ltd | 1/10/2025 | | S140 (Rev B) | Building A Ground Floor | SRH Architecture Pty Ltd | 1/10/2025 | | | Structural Letter | SRH Architecture Pty Ltd | 3/10/2025 | | | Structural Letter | SRH Architecture Pty Ltd | 14/10/2025 | | P3244_07 Rev 1 | Geotechnical Investigation Report | Morrow Geotechnics | 16/09/2025 | | | Design Verification Statement | SRH Architecture Pty Ltd | 30/09/2025 | | 1816612M | BASIX Certificate | NSW Department of Planning | 10/10/2025 |

2. The amended plans and other documents listed above were filed with the Court on 29 October 2025.

Orders

33. The Court orders that:

34. The modification application pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

35. Development Consent No. DA416/2021/1 is modified in the terms in Annexure A.

36. Development Consent No. DA416/2021/1 as modified by the Court is Annexure B.

T Horton

Commissioner of the Court

Annexure A (269 KB, pdf)

Annexure B (1.04 MB, pdf)

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