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[2025] NSWLEC 1867
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-09
Macken AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: HSN Construction NSW Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1867
Hearing dates: Conciliation Conference on 1 December 2025
Date of orders: 09 December 2025
Decision date: 09 December 2025
Jurisdiction: Class 1
Before: Macken AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA348/2024/1, for the demolition of existing building and the construction of new residential flat building with basement parking and associated landscaping at 370 Edgecliff Road, Woollahra NSW 2025 legally known as Strata Plan 86950, subject to the conditions set out in Annexure "A”.
(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application including the order as to costs made in the orders made by the Registrar on 3 October 2025 in respect of the Notice of Motion filed by the Applicant on 26 September 2025, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $25,000.00 payable in 7 days after the date of these orders.
Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.55, 8.15, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 100,
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Ch 2, 6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6,
State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1, s 2.1
State Environmental Planning Policy (Housing) 2021, s 15C
Woollahra Local Environmental Plan 2014, cll 1.3, 2.3, 2.7, 4.1A, 4.3. 4.4, 5.10, 6.1, 6.2
Texts Cited: Woollahra Development Control Plan 2015
Category: Principal judgment
Parties: HSN Construction NSW Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation: Counsel:
A Pickles (Applicant)
N Eastman (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)
File Number(s): 2025/143887
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Woollahra Municipal Council’s deemed refusal of the Applicant’s development application (DA) No. DA348/2024/1 seeking approval for the demolition of an existing strata titled residential flat building and construction of a new residential flat building, landscaping and ancillary works at 370 Edgecliff Road, Woollahra, NSW (legally known as SP86950).
The DA was lodged with Woollahra Municipal Council on 3 September 2024.
The DA was notified from 25 September to 10 October 2024; 53 submissions were received.
The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 14 April 2025 against Council’s deemed refusal of the DA pursuant to s 8.7 of the Envi**ronmental Planning and Assessment Act 1979 (NSW) (EPA Act).
On 15 May 2025 the Woollahra Local Planning Panel issued a determination to refuse the DA.
A s 34 conciliation conference held on 8 August 2025 was terminated.
On 3 October 2025, the Court granted leave for the Applicant to rely on amended plans and documents as per their Notice of Motion. The amended DA plans were renotified to residents, and 8 submissions were received.
The matter proceeded to a hearing on 1 December 2025, commencing on site. Three submissions were made, and the Court was taken to view the interior of six apartments.
At the commencement of the hearing, the parties advised that further amendments to the application had resolved all relevant contentions, and at their request the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided over both the hearing and the conciliation conference which were held on the same day.
At the conciliation conference between the parties, on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement was submitted to the Court on 1 December 2025, in accordance with s 34(10) of the LEC Act.
Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement. The parties agreed the amended application resolved the contentions through revised architectural design, additional reports, and conditions of consent.
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 4.16 of the EPA Act to grant consent to the development application.
The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent.
I have considered the Jurisdictional Statement and its referenced documents, the Class 1 Application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
I formed an opinion of satisfaction, based on the above, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
The parties agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) have been considered and are satisfactorily addressed.
The Application was made with the consent of the owners of the subject site in compliance with the EPA Regulation. The owners’ consent has been filed with the Court.
An updated BASIX Certificate has been prepared as part of the application, in respect of the requirement for a BASIX Certificate under s 100(3) of the EPA Regulation.
Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.
Part 6.2 – Development in Regulated Catchments – applies to the site as the site is located within a regulated catchment (Sydney Harbour Catchment).
Chapter 6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent Council or the Court on appeal has considered matters including:
(a) whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, (b) whether the development will have an adverse impact on water flow in a natural waterbody, (c) whether the development will increase the amount of stormwater run-off from a site, (d) whether the development will incorporate on-site stormwater retention, infiltration or reuse,
Woollahra Local Environmental Plan 2014 (WLEP) applies to the subject site, which is within the Woollahra Local Government Area (WLEP, cl 1.3).
The subject site is located within the R3 Medium Density Residential zone. Development for the purposes of residential flat buildings is permissible with consent in the R3 zone, and demolition may be carried out with consent under cl 2.7 of WLEP. Pursuant to cl 2.3 of the WLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:
To provide for the housing needs of the community within a medium density residential environment.
To provide a variety of housing types within a medium density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
To ensure development conserves and enhances tree canopy cover.
The site has a lot size of 1608 m2 which complies with the prescribed minimum lot size control of 700 m2 in cl 4.1A of WLEP.
The parties agree and I am satisfied that the DA as amended remains within the height standard at cl 4.3 of WLEP. The DA proposes to provide affordable housing pursuant to the Housing SEPP, which permits an additional 30% height above the prescribed maximum height control of 19.5 m subject to the provision of affordable housing. On this basis the permissible height is 25.35 m; the plans as amended propose a height of 25.29 m, which complies with the height limit.
The parties agree and I am satisfied that the DA as amended complies with the maximum permissible floor space ratio (FSR) prescribed in cl 4.4 of WLEP. Subject to the provision of affordable housing pursuant to the Housing SEPP, an additional 30% above the WLEP control of 1.55:1 FSR is permitted, bringing the maximum FSR for the proposed development to 2.015:1. The proposed development seeks an FSR of 1.99:1 which complies with the permissible FSR.
The site is located within the Woollahra Heritage Conservation Area. The parties agree and I am satisfied that the modification proposed is acceptable having regard to the objectives in cl 5.10 (Heritage Conservation) of the WLEP. In support of this I note the urban design and heritage joint expert report filed with the Court did not raise any heritage contentions.
The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the Acid Sulfate Soils Map at cl 6.1 of the WLEP. I accept the advice of the parties that, as the subject works are not within 500 m of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an ASS management plan is not required, and that the proposed development is consistent with cl 6.1 of the WLEP.
Clause 6.2 (Earthworks) of the WLEP applies to the subject site. I am satisfied that the implementation of the Geotechnical Report (prepared by Rapid Geo, dated 30 August 2025) and the agreed conditions of consent, address and satisfy the matters to be considered at cl 6.2(3).
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.
I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.
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 at dispute between the parties.
The Court notes that
The Respondent, Woollahra Municipal Council, as the relevant consent authority, has approved under section 37(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending Development Application No. DA348/2024/1 in accordance with the following amended plans and documents (Amended Development Application) which have been filed with the Court:
| Reference | Description | Author | Date | | DA000 (Issue N) | COVER PAGE | PDB Architects | 10/11/2025 | | DA001 (Issue N) | PROJECT INFORMATION | PDB Architects | 10/11/2025 | | DA002 (Issue N) | DEMOLITION PLAN | PDB Architects | 10/11/2025 | | DA003 (Issue N) | SITE ANALYSIS | PDB Architects | 10/11/2025 | | DA004 (Issue Q) | SITE PLAN | PDB Architects | 10/11/2025 | | DA100 (Issue Q) | BASEMENT 2 PLAN | PDB Architects | 10/11/2025 | | DA101 (Issue Q) | BASEMENT 1 PLAN | PDB Architects | 10/11/2025 | | DA102 (Issue R) | LOWER GROUND FLOOR PLAN | PDB Architects | 10/11/2025 | | DA103 (Issue R) | GROUND FLOOR PLAN | PDB Architects | 10/11/2025 | | DA104 (Issue R) | LEVEL 1-3 | PDB Architects | 10/11/2025 | | DA105 (Issue R) | LEVEL 4-5 | PDB Architects | 10/11/2025 | | DA106 (Issue R) | LEVEL 6 | PDB Architects | 10/11/2025 | | DA107 (Issue Q) | ROOF PLAN | PDB Architects | 10/11/2025 | | DA200 (Issue N) | ELEVATION SHEET 01 | PDB Architects | 10/11/2025 | | DA201 (Issue N) | ELEVATION SHEET 02 | PDB Architects | 10/11/2025 | | DA202 (Issue N) | ELEVATION SHEET 03 | PDB Architects | 10/11/2025 | | DA203 (Issue N) | ELEVATION SHEET 04 | PDB Architects | 10/11/2025 | | DA300 (Issue N) | SECTION SHEET 1 | PDB Architects | 10/11/2025 | | DA301 (Issue N) | SECTION SHEET 2 | PDB Architects | 10/11/2025 | | DA302 (Issue N) | SECTION SHEET 3 | PDB Architects | 10/11/2025 | | DA400 (Issue N) | MATERIAL FINISHES SCHEDULE | PDB Architects | 10/11/2025 | | 1748968M_04 | BASIX | Department of Planning, Housing and Infrastructure | 17/11/2025 | | Job No. 23/188, Rev C | Stormwater Management Plan | ITM Design | 13/11/2025 | | | Landscape Plan | Dangar Barin Smith | 26/11/2025 | | | Design Verification Statement | PBD Architects | 12 November 2025 | | | Housing Provider Letter | Home Ground Real Estate Sydney | 30 July 2025 | | | Structural Engineering Letter | iStruct | 6 November 2025 |
The Court orders that:
The appeal is upheld.
Development consent is granted to development application DA348/2024/1, for the demolition of existing building and the construction of new residential flat building with basement parking and associated landscaping at 370 Edgecliff Road, Woollahra NSW 2025 legally known as Strata Plan 86950, subject to the conditions set out in Annexure "A”.
The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application including the order as to costs made in the orders made by the Registrar on 3 October 2025 in respect of the Notice of Motion filed by the Applicant on 26 September 2025, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $25,000.00 payable in 7 days after the date of these orders.
Annexure A (862 KB, pdf)
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HSN Construction NSW Pty Ltd
Woollahra Municipal Council [2025] NSWLEC 1867