Grand Noble Capital No. 3 Pty Ltd v Woollahra Municipal Council

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

File Number(s): 2024/439843

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Woollahra Council, of the applicant’s request to modify development consent DA321/2020 at 19-27 Cross Street, Double Bay.

2. This application is the sixth request to modify the approved development application, and relates to conditions I.2 and C14, seeking a revised mix of residential and non-residential parking allocation to an approved shop top housing development. This will increase the number of residential vehicle parking spaces from 27 to 37 and reduce the non-residential parking spaces from 19 to 10.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. 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 18 March 2025. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

5. Under s 34(3) of the LEC Act, 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 of the EPA Act to modify the development for which consent was originally granted.

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

7. The requested modification will result in a change to the allocation of parking spaces, with no other material change. Subsequently, pursuant to the requirements of s 4.55(1A) of the EPA Act, the parties submit and I accept that the proposed modification is of minimal environmental impact. I am also satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

8. The modification application was notified from 23 October to 7 November 2024, during which time no submissions were received.

9. Based on the information contained in the Statement of Environmental Effects, 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), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(2) and that there is no jurisdictional impediment to the granting of consent.

10. 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.

11. The Court orders:

12. The appeal is upheld.

13. Modification Application DA321/20/6, which seeks to modify Development Consent No. DA321/2020 at 19-27 Cross Street, Double Bay to amend conditions I.2 and C14 to revise the mix of residential and non-residential parking allocation, is approved.

14. Development Consent No DA321/2020 is modified in the terms in Annexure A.

15. Development Consent No DA321/2020 as modified by the Court is set out in Annexure B.

E Washington

Commissioner of the Court

Annexure A

Annexure B

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