Gallon v Woollahra Municipal Council

Category: Principal judgment

Parties: Nathan Gallon (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicants)
J Ede (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/422130

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a modification application appeal filed directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessme**nt Act 1979 (EPA Act) to DA-237/2022/1 at 144 Bellevue Road, Bellevue Hill (Lot 1 DP981550). The modification application seeks internal and external modifications throughout the development, including changes to the car parking stackers to a car lift, internal reconfiguration of the apartments, changes to services and related features along the front setback, changes to the front facade and modifications to the stormwater works.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 12 March 2025. I presided over the conciliation conference.

3. The respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending DA-237/2022/3 in accordance with the documents listed below (amended application):

4. Updated BASIX Certificate no 1730145M_02, dated 12 March 2025.

5. Email from Ausgrid, dated 25 February.

6. Civil and stormwater plans, prepared by H&H Consulting Engineers.

(a) Sheet C000 (Revision 1), dated 31 October 2024. (b) Sheet C010 (Revision 1), dated 31 October 2024. (c) Sheet C102 (Revision 3), dated 26 February 2025. (d) Sheet C104 (Revision 2), dated 26 February 2025. (e) Sheet C200 (Revision 1), dated 31 October 2024. (f) Sheet C201 (Revision 3), dated 26 February 2025. (g) Sheet C250 (Revision 3), dated 26 February 2025. (h) Sheet SE01 (Revision 1), dated 31 October 2025. (i) Sheet SE02 (Revision 1), dated 31 October 2025.

4. Responses to contentions, prepared by Frank Zhou of H&H Consulting Engineers, dated 26 February 2025.
5. Structural certificate, prepared by Laki Revellos of H&H Consulting Engineers, dated 12 March 2025.
6. Traffic Engineer Appendix A, prepared by Motion Traffic Engineers, dated 24 February 2025.
7. Traffic Engineer Appendix B, prepared by Motion Traffic Engineers, dated 26 February 2025.
8. On-street parking assessment of a proposed residential development, prepared by Motion Traffic Engineers, dated February 2025.
9. Further updated architectural plans, prepared by EMK Architects, being;

(a) Sheet A0003, Issue 3 dated 10 March 2025. (b) Sheet A0008, Issue 3 dated 10 March 2025. (c) Sheet A0009, Issue 3 dated 10 March 2025. (d) Sheet A0100, Issue 3 dated 10 March 2025. (e) Sheet A0101, Issue 3 dated 10 March 2025. (f) Sheet A0102, Issue 3 dated 10 March 2025. (g) Sheet A0103, Issue 3 dated 10 March 2025. (h) Sheet A0104, Issue 3 dated 10 March 2025. (i) Sheet A0105, Issue 3 dated 10 March 2025. (j) Sheet A0201, Issue 3 dated 10 March 2025. (k) Sheet A0202, Issue 3 dated 10 March 2025. (l) Sheet A0203, Issue 3 dated 10 March 2025. (m) Sheet A0204, Issue 3 dated 10 March 2025. (n) Sheet A0205, Issue 3 dated 10 March 2025. (o) Sheet A0301, Issue 3 dated 10 March 2025. (p) Sheet A0302, Issue 3 dated 10 March 2025. (q) Sheet A0401_B, Issue 3 dated 10 March 2025. (r) Sheet A5001, Issue 3 dated 10 March 2025. (s) Sheet A0402, Issue 1 dated 19 March 2025.

4. 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 granting the modification application and modifying the development consent. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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.

Jurisdictional Prerequisites

6. 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. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

7. I am satisfied that owners consent accompanied the modification application (s 98 of the EPA Reg).

8. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications to the apartments, car parking area, stormwater, fencing and services in the front setback and façade are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by GSA Planning (SEE) (s 4.55(2)(a) of the EPA Act).

9. With respect to s 4.55(2)(c) and (d) of the EPA Act, the modification application was notified between 15 January 2025 to 30 January 2025. No submissions were received. The original development application did not require any approvals or concurrence (s 4.55(2)(c) of the EPA Act).

10. Chapter 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the amended application. The Applicant’s nominated architect, Emil Kucevic (Registration no. 9308), has prepared a Design Verification Statement and Design Report that satisfy the requirements of s 147 of the Housing SEPP and s 102 of the EPA Reg.

11. The amended application is accompanied by an amended BASIX certificate (1730145M_02) that satisfies s 100 of the EPA Reg.

12. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional statement. I have considered the reasons for the grant of consent, noting that the original consent was also an agreement between the parties and the reasons were limited to jurisdiction (see: Gallon v Woollahra Municipal Council [2023] NSWLEC 1002 (s 4.55(3) of the EPA Act)).

Conclusion

13. 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.

14. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

15. 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.

Orders

16. The Court orders:

17. The appeal is upheld.

18. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, the application to modify development consent DA-237/2022/1 at 144 Bellevue Road, Bellevue Hill, is modified in the terms in Annexure A.

19. The terms of the consolidated Development Consent No DA-237/2022/1 are set out in Annexure B.

S Porter

Commissioner of the Court

Annexure A (455917, pdf)

Annexure B (1092183, pdf)

**********