Helm Pty Limited v Willoughby City Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
North Sydney Council v Michael Standley & Associates Pty Ltd (1988) 43 NSWLR 468; [1998] NSWSC 163
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Category: Principal judgment

Parties: Helm Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/403769

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Modification Application No. DAM-2025/92 (the Modification Application). The Modification Application seeks to modify development consent DA 2020/238 (Development Consent) which granted approval for the adaptive conversion of the existing commercial building into shop top housing, including an additional level at 131 Sailors Bay Road, Northbridge NSW 2063 (Lot 5 in Deposited Plan 4409).

2. The Modification Application seeks consent to change apartment layouts, window fenestrations and party walls and amend conditions of consent and propose staging of the approved works.

3. Following the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 19 December 2025. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. 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. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Jurisdictional preconditions to consent

5. The Modification Application was made pursuant to s 4.55(2) of the EPA Act.

The pre-requisites in s 4.55(2) of the EPA Act include:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if-

(a) it is 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 (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with-

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Substantially the same development: s 4.55(2)(a) of the EPA Act.

6. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

7. In terms of a qualitative and quantitative assessment, the proposed modifications do not alter critical elements of the original development such to require a new development application.

8. The modifications are minor and do not introduce any new uses, increase density, or alter the approved land use or intensity of development.

9. I am satisfied that on the basis of the amendments made by the Applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.55 (2)(b) of the EPA Act

8. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.

9. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities.

10. The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification: s 4.55(2)(c) of the EPA Act

11. The third jurisdictional requirement under s 4.55(2)(c) of the EPA Act relates to the notification of the Modification Application. The Modification Application was notified in accordance with the requirements of the EPA Act, and the Willoughby Council’s Community Engagement Framework between 9 and 23 September 2025. The Respondent received a request from a neighbouring resident for the notification period to be extended as they had not received the notification letter for the Modification Application advising of the notification period. A time extension was granted until the 7 October 2025.

12. Six submissions were received. The six submissions made by the residents raised concerns with the proposed Modification Application in relation to:

(a) Visual Privacy, (b) Overlooking, (c) Noise, (d) Light Spill, (e) Accuracy of the gross floor area calculations and whether the development complies with the Floor Space Ratio development standard, (f) Non-compliance with cl 6.7 Active Street Frontage of the Willoughby Local Environmental Plan 2012 (WLEP 2012), and (g) Non-compliance with setback requirements.

13. At the commencement of the conciliation conference the Court was also addressed by a number of concerned residents.

Consideration of submissions: s 4.55(2)(d) of the EPA Act

14. The fourth jurisdictional requirement under s 4.55(2) of the EPA Act is the requirement for the consent authority to consider any submission made concerning the Modification Application.

15. As detailed in [4], in circumstances where the parties have reached agreement in proceedings the role of the Court is to ensure that the decision agreed is one which the Court could have made in the proper exercise of its functions. In this case, the relevant matter to be satisfied is that the submissions have been considered in accordance with s 4.55(2)(d) of the EPA Act. With the assistance of the modification application documents and reports and the Jurisdictional Note provided by the parties, I accept the agreement of the parties that the submissions have been considered. The Modification Application has been amended, in part to address concerns expressed in the submissions received. The requirements of s 4.55(2)(d) of the EPA Act are met.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act

16. Pursuant to s 4.55(3) of the EPA Act in determining an application for modification of a consent under this section, the consent authority must take into consideration the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development in the subject of the application. My consideration of those matters is detailed below.

17. The Modification Application has been made with the consent of the owner of the Site: s 100(1)(i) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The Applicant of the Modification Application is the same as the Development Consent, and written consent was provided with the lodgement of the Modification Application. The Respondent continues to provide consent for works in Harden Avenue.

18. Pursuant to s 4.2(1)(f) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), the Sustainable Buildings SEPP does not apply to an application for modification of a Development Consent submitted on the NSW planning portal on or after 1 October 2023. The development application was submitted on the NSW Planning Portal and determined before 1 October 2023, meaning the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies.

19. The Development Consent incorporated a requirement for the development to be implemented in accordance with the applicable BASIX certification. A revised BASIX Certificate has been prepared in respect of the Modification Application and is current. The requirements of s 100(3) of the EPA Regulation are met.

20. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the Modification Application*.* As required by s 146(2) of SEPP Housing, the Modification Application includes a statement from a qualified designer within the meaning of s 102(1) of the EPA Regulation. This statement confirms the same qualified designer directed the design of the original development. As the Modification Application was directed by the same qualified designer as the Development Consent there is no requirement for the consent authority to refer the Modification Application to the design review panel before determining the Modification Application pursuant to s 146(2) of SEPP Housing.

21. Section 147(1) of SEPP Housing contains three requirements that must be satisfied to Modification Applications for residential apartment development. With the assistance of the Design Verification Statement that accompanies the Modification Application, As required by s 147(1)(a) of SEPP Housing, I have considered the quality of the design of the development when evaluated in accordance with the design principles at Sch 9 of SEPP Housing.. Further, in determining the Modification Application I have considered the Apartment Design Guide relevant to the application. The final requirement is that the consent authority must consider the advice provided from the Design Review Panel. As detailed at [20] that requirement is otiose in this case.

Willoughby Local Environmental Plan 2012

22. The site is zoned E1 Local Centre zone pursuant to the WLEP 2012 and shop top housing is a purpose which is permissible with consent. The Modification Application maintains a permissible use.

23. Clause 4.4 ‘Floor Space Ratio’ provides that the maximum floor space ratio (FSR) for a building on the land is not to exceed the FSR for the land on the Floor Space Ratio Map under WLEP 2012. That map provides for a maximum FSR of 2.5:1. In response to concerns raised by objectors, the parties have confirmed to the Court that the Modification Application is for development that has a compliant FSR. The Modification Application proposes a FSR of 2.47:1 which is a reduction 0.03:1 from the Development Consent.

24. Notwithstanding the above, and should the parties be in error in relation to their calculations, a written request pursuant to cl 4.6 of WLEP 2012 is not required for the contravention of a development standard arising as a result of a modification application. See: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [34] - [35]. Cf: Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 at [4] per Talbot J; North Sydney Council v Michael Standley & Associates Pty Ltd (1988) 43 NSWLR 468; [1998] NSWSC 163 at [480] - [481].

25. In considering the relevant matters under s 4.55(3) of the EPA Act, I accept the agreed submission of the parties that the remaining matters are matters of which the Court is not required to address under s 34(3): Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245, at [215]; McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183, at [62]-[65]. I record that these matters are addressed in the parties’ jurisdictional note which demonstrates each are complied with or do not warrant the refusal of the Modification Application.

26. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).

27. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

Notes

28. The Court notes that:

29. Willoughby City Councill, as the relevant consent authority, has approved, under s 113 of EPA Regulation), the Applicant amending Modification Application No. DAM-2025/92 to include the following document:

| Plan Name | Drawing Ref | Revision | Date | Prepared by | | Indicative Eastern Elevation Window Opening Detail | DA.41 | A | 19.12.25 | Brick Architects |

2. Willoughby City Council continues to provide owners consent for the works on Harden Avenue pursuant to s 100(1)(h) of the EPA Regulation.

Orders

29. The Court orders that:

30. (1) The appeal is upheld

31. (2) Modification Application No. DAM-2025/92 for the modification of Development Consent No. DA-2020/238 (‘Development Consent’) at 131 Sailors Bay Road Northbridge 2063, is approved.

32. (3) The Development Consent is modified in the terms set out in Annexure A.

33. (4) The Development Consent for the adaptive conversion of the existing commercial building into shop top housing, including an additional level at 131 Sailors Bay Road Northbridge 2063 as modified by the Court is at Annexure B.

D Dickson

Commissioner of the Court

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Annexure A (266 KB, pdf)

Annexure B (353 KB, pdf)

Amendments

12 January 2026

Date of Judgment amended on Annexure B.