Fullerton Street Developments Pty Limited v Council of the Municipality of Woollahra

Legislation Cited: Environment Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 113

Cases Cited: TM Woollahra Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1075

Category: Principal judgment

Parties: Fullerton Street Developments Pty Limited (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Woollahra Municipal Council ( Respondent)

File Number(s): 2025/192254

Publication restriction: Nil

JUDGMENT

1. These proceedings relate to the Applicant’s Class 1 appeal made directly to the Land and Environment Court (Court) pursuant to s 4.55 (8) of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) to modify the Development Consent DA247/2024 granted by the Court. The appeal seeks to modify DA247/2024 which granted consent for the demolition of existing residential flat buildings and the construction of a part five, part six-storey residential flat building comprising:

2. three 2-bedroom apartments;

3. eleven 3-bedroom apartments;

4. one 4-bedroom apartment;

5. two basement levels containing 31 parking spaces;

6. associated landscaping works; and

7. the communal and private open spaces.

8. The site of the development is located at 1-3 Fullerton Street, Woollahra NSW 2025 and is legally described as SP16668 (Site).

9. On 20 May 2025, the Applicant filed these Class 1 proceedings which are a modification application made directly to the Court pursuant to s 4.55 (8) of the EPA Act to modify Development Consent DA247/2024 (Modification Application).

10. On 2 September 2025, the parties participated in a s 34 conciliation conference before Acting Commissioner Miller. The conciliation conference was terminated. However, shortly thereafter the Council agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending the modification application to adequately respond to the Council’s contentions. In summary, the amendments to the application include changes to:

11. the pavilion and communal areas;

12. balconies and planter boxes;

13. drawings and diagrams regarding wall placement and trees; and

14. fire safety, access, ventilation, materials and finishes and canopy design.

15. The parties submitted a s 34 agreement and the matter was listed for a second conciliation conference on 26 September 2025.

16. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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(8) of the EPA Act to modify the development for which consent was originally granted by the Court.

17. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in written submissions. From these submissions, I note the following points.

18. The Modification Application (as amended) does not alter the proposed use of the land, namely for a part five, part six-storey residential flat building with two levels of basement car parking. The physical form of the building will generally remain the same as that which was originally approved and the relationship of the development to adjoining properties will remain largely consistent with the approved development. External modifications proposed relate to façade amendments and rooftop amendments, namely minor layout amendments are proposed to the rooftop area.

19. On this basis, pursuant to the requirements of s 4.55(2) of the EPA Act, I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

20. No further consultation is required pursuant to the requirements under EPA Act s 4.55(2)(b), and the application was notified as required under s 4.55(2)(c) for a period of 15 days between 25 June 2025 to 10 July 2025 and no submissions were received.

21. Based on the information contained in the parties’ submissions and the original judgment of the Court at TM Woollahra Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1075, I am satisfied that the reasons given by the consent authority for the grant of consent that is sought to be modified have been considered.

22. Based on the information contained in the Class 1 application and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), that are of relevance to the development the subject of this application, have been considered, as required by s 4.55(3) of the EPA Act and that there is no jurisdictional impediment to the granting of consent.

23. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

24. The Court notes that:

25. Council of the Municipality of Woollahra, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Modification Application of Development Consent No. DA247/2024/1 in accordance with the documents set out in Annexure C.

26. The Court orders that:

27. The appeal is upheld.

28. The appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) to modify Development Consent No. DA247/2024 granted by the Court on 11 February 2025 (TM Woollahra Pty Ltd v Council of the Municipality of Woollahra [2025] NSWLEC 1075) to reconfigure the roof layout, replace the arched windows with orthogonal openings and minor amendments to the landscaping at 1-3 Fullerton Street, Woollahra is approved.

29. Development Consent No. DA247/2024/1 is modified in the terms set out in Annexure A.

30. Development Consent No. DA247/2024 as modified by the Court is Annexure B.

S Froh

Registrar of the Court

Annexure A (183 KB, pdf)

Annexure B (1.07 MB, pdf)

Annexure C (130 KB, pdf)

**********