Edgecliff Residences Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 98, 100, 102, 113
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6
State Environmental Planning Policy (Housing) 2021, s 147, Ch 4, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.112, 2.119, 2.120
Woollahra Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.9

Category: Principal judgment

Parties: Edgecliff Residences Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

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

File Number(s): 2024/476929

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application DA372/2023/2 (the MA) made directly to the Court by Edgecliff Residences 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 DA372/2023/1 (the parent DA), which comprises the demolition of the existing strata titled residential apartment building, construction of a new residential apartment building comprising eleven units and 24 car-parking spaces, landscaping and strata subdivision, at 365 Edgecliff Road, Edgecliff (the site).

3. Consent for the parent DA was granted by the Court on 15 October 2024 in proceedings Edgecliff Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1639.

4. The MA was lodged with the Court on 23 December 2024 and at that date sought approval to modify the parent DA to infill the internal pool and gym area to provide for an additional unit, reconfigure parts of recessed areas to increase the internal space for units, and reconfiguring a number of balconies. The MA also proposed the inclusion of two roof terraces accessible from the top-storey penthouses.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on on 26 June 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 inconsistencies between the MA and the reasons for the grant of consent to the parent DA, the further exceedance of the building height control, the further exceedance of the floor space ratio (FSR) control, incompatibility with the desired future character of the local area, insufficient building articulation, and concerns for view impacts, acoustic and visual privacy.

8. Agreed design amendments include the deletion of the two roof terraces accessible from the top-storey penthouses, the reintroduction of some areas of building articulation, and the introduction of privacy screening. Together these amendments are agreed to resolve the issues in this matter.

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 (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.

12. The parties agree, and I am satisfied, that the MA was notified between 5 February and 20 February 2025 in accordance with the Respondent’s Community Participation Plan. The Respondent received five submissions in response to notification raising concerns including:

13. Further exceedance of the building height control resulting from the introduction of private rooftop terraces.

14. Further exceedance of the maximum FSR control and overdevelopment of the site.

15. Reduction in depth of recessed areas adjacent to neighbouring properties on Edgecliff Road.

16. Visual and acoustic privacy impacts to neighbouring buildings.

17. Overshadowing impacts on neighbouring properties.

18. View loss impacts created by the proposed rooftop terraces.

19. Visual impact of external spiral staircase.

20. Insufficient information supporting the MA.

21. Inconsistencies with the character of the area.

22. Failure to disclose a roof terraces as a significant feature at the time of the parent DA.

23. At the request of the Respondent, the Applicant provided the amended MA for informal re-notification to the five objectors. The Respondent received one further submission in response to the amended MA, which has been considered by the parties.

24. During the site view on the morning of 26 July 2025, a resident briefly addressed the Court to positively acknowledge that the roof terraces had been deleted from the amended MA.

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

26. 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 effectively the same envelope as the parent DA, apart from some relatively minor adjustments to the building form within the side and rear setbacks. The additional floorspace provided within the similar 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 extent of deep soil remains similar to the parent DA. The use as a residential apartment building 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.

27. 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.

28. The Court’s reasons for the original grant of consent to the parent DA (which also involved agreed amendments between the parties) include the amended design’s improved relationship to the site, its context, and the desired future character of this area of Edgecliff, reducing building form and mass by one storey across the site frontage and increasing setbacks to sensitive neighbouring properties. Changes were made to improve internal residential amenity, to improve the proposed presentation to primary street frontages and to mitigate against cross viewing. Trees previously impacted are retained and protected. These agreed amendments also have the effect of reducing view impacts for a number of affected neighbours.

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

30. Consistent with the parent DA consent, I am satisfied that the site is zoned R3 Medium Density Residential pursuant to cl 2.3 WLEP. Development for the purposes of residential apartment buildings is permissible with consent.

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

32. I am satisfied that pursuant to cl 4.3 of the WLEP - Height of buildings - the relevant development standard for the site is 19.5m. The parent DA was granted consent for a building of 22.57m in height and the MA does not seek an increase in height.

33. I am satisfied that pursuant to cl 4.4 of the WLEP - FSR - the relevant development standard is 1.55:1. The parent DA was granted consent with an FSR of 1.546:1 complying with the development standard. The MA seeks an increase to the gross floor area that would result in an FSR of 2.076:1.

34. 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 the bulk and scale of new development is compatible with the desired future character of the area; to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain; and to ensure that development allows adequate provision on the land for deep soil planting, tree canopy cover and areas of private open space.

35. 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:

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

37. Clause 5.21 - Flood planning - The site is not identified as being flood affected.

38. Clause 6.1 - Acid sulfate soils - the site is situated within a Class 5 area as mapped in the WLEP. The amended MA does not propose any works that require further consideration of this issue.

39. Clause 6.2 - Earthworks - the amended MA proposes only minor additional earthworks. 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.

40. Clause 6.9 - Tree canopy cover in Zones R2 and R3 - the amended MA does not result in the loss of any trees or canopy beyond that already approved in the parent DA.

41. 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 long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

42. 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 EPA Reg, a BASIX certificate, No 1426391M_05, dated 13 June 2025, has been provided with the final amended MA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

43. 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.

44. Accordingly, and pursuant to s 102 of the EPA Reg, the Applicant's architect MHN Design Union (nominated architect Brian Meyerson, NSW registered architect 4907) has prepared a Design Verification Statement 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.

45. 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.

46. 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.

47. 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.

48. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

49. Pursuant to s 2.112 of SEPP Infrastructure, Transport for NSW provided its concurrence to the parent DA to permit a stormwater connection being made along the site’s New South Head Road frontage. The amended MA does not propose any change to this stormwater connection.

50. Pursuant to s 2.119 of SEPP Infrastructure, the site has a frontage to the New South Head Road, which is a classified road. The final amended MA continues to provide vehicular access to the site away from this classified road and instead is accessed by vehicles from Edgecliff Road.

51. Pursuant to s 2.120 of SEPP Infrastructure, the site’s proposed residential use and proximity to the New South Head Road, with an average daily traffic volume of more than 20,000 vehicles, triggers certain requirements to mitigate against road noise and vibration. Accordingly, the Applicant has provided an Acoustic Report prepared by Renzo Tonin and Associates dated 16 December 2024 addressing the requirements of s 2.120 and setting out recommendations to ensure appropriate mitigation against acoustic impacts within the proposed residential apartments. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Report.

52. 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.

53. 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.

54. The Court notes that:

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

56. The Applicant has lodged the amended MA with the Court on 26 June 2025.

Orders

40. The Court orders that:

41. Leave is granted to the Applicant to amend Modification Application DA372/2023/2 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

42. Modification Application DA372/2023/2 (as amended), for infilling the internal pool and gym area to provide for an additional unit, reconfiguring parts of recessed areas to add to the internal space for units, and reconfiguring a number of balconies, at 365 Edgecliff Road Edgecliff, is determined by way of approval.

43. Development Consent DA372/2023/1 is modified subject to the conditions of consent set out at Annexure A.

44. Development Consent DA372/2023/1 (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

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Annexure A (233 KB, pdf)

Annexure B (986 KB, pdf)

Architectural Plans (Part1) (29.6 MB, pdf)

Architectural Plans (Part2) (24.5 MB, pdf)