Lacey v Woollahra Municipal Council

Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312
Wehbe v Pittwater Council (2007) 156 LGERA 446

Texts Cited: NSW Government, Contaminated Land Planning Guidelines
Woollahra Community Participation Plan

Category: Principal judgment

Parties: Rebecca Lacey (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
M Cole (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)
Solicitors:
Swaab (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/362808

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA 331/2024/1 (PAN-461934) seeking consent for development described as ‘alterations and additions to an existing dwelling house’ (Proposed Development) at 83 Fitzwilliam Road, Vaucluse legally described as Lot 2 DP 346850, Lot 1 DP 346850, PID 3895, Lot 1 DP 430595, Lot 2 DP 430595, Lot 3 DP 430595, Lot 100 DP 1304245. (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2025. I presided over the conciliation conference.

3. In the course of these proceedings the Applicant has provided the Respondent with amended plans and documents which address the Respondent's contentions in the Statement of Facts and Contentions filed 31 October 2024. The parties agree that these amended plans and documents are acceptable and satisfy the requirements of the WLEP and Woollahra Development Control Plan 2015.

4. At the conciliation conference, 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 upholding the appeal and granting development consent to the development application subject to conditions.

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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application.

7. 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 to be the terms of cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to vary a development standard, Ch 2 and 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) regarding development on coastal land and contamination status of the Site. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

8. The Applicant in these proceedings is the registered proprietor of the Land and has standing pursuant to s 8.7(1) of the EPA Act (see Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312 at [43]). Since the Applicant is the owner of the land, the Development Application complies with and meets the requirements of s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

9. The Land is zoned R2 – Low Density Residential pursuant to the WLEP. Development for the purpose of dwelling houses is permitted within this zone with development consent in accordance with the Land Use Table in the WLEP.

10. As the existing building is located below the mean high water mark, development consent is sought to carry out development on land below the mean high water mark pursuant to cl 5.7 of the WLEP.

11. The Proposed Development was notified between 11 September 2024 to 26 September 2024 and complies with the minimum notification requirement of 15 days under the Woollahra Community Participation Plan. No public submissions were received.

12. Whilst the Proposed Development retains the existing setbacks of the dwelling, with the existing dwelling and proposed alterations and additions located within the foreshore building line, the development is not prohibited under cl 6.4(2)(a) of the WLEP as the proposed works are for alterations and additions to an existing dwelling partially or wholly within the foreshore area. Under clause 6.4(4) of the WLEP development consent cannot be granted unless the consent authority is satisfied as to certain matters. The Court can be satisfied that the relevant matters to be considered under clause 6.4(4) of the WLEP with respect to the appearance and impact of the development have been addressed.

13. Although the Site is mapped as being within both the Coastal Environment Area and the Coastal Use Area, ss 2.10 and 2.11 within Ch 2 (Coastal Management) of the Resilience and Hazards SEPP do not apply, because the Site is on land within the Foreshores and Waterways Area within the meaning of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6: ss 2.20(3) and 2.11(2), Resilience and Hazards SEPP.

14. Section 2.12 of the Resilience and Hazards SEPP applies to development within the coastal zone, generally. Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land. A ‘coastal hazard’ is defined by the Coastal Management Act 2016 as:

(a) beach erosion (b) shoreline recession (c) coastal lake or watercourse entrance instability (d) coastal inundation (e) coastal cliff or slope instability (f) tidal inundation (g) erosion and inundation of foreshores caused by tidal waters and the action of waves, including the interaction of those waters with catchment floodwaters

15. The parties agree that the Proposed Development is not considered likely to increase risk of coastal hazards on the Site or other land because the Proposed Development retains the original building envelope.

16. Pursuant to the "Sydney Harbour Foreshores and Waterways Area Map" in the Biodiversity and Conservation SEPP, the Site is located within the Foreshores and Waterways Area identified on that map and is also located within the Sydney Harbour catchment: Part 6.1(b), Chapter 6. Relevant parts of Chapter 6 of the Biodiversity and Conservation SEPP are Part 6.2: Development in Regulated Catchments and Part 6.3: Foreshores and Waterways Area.

17. In satisfying the various jurisdictional prerequisites in the Biodiversity and Conservation SEPP, it is relevant to note that the nature of the Proposed Development is for internal alterations and additions retaining the original building envelope and with limited fenestration changes. There is no excavation proposed and the existing impervious areas remain unchanged. I have read the thorough review of the various provisions in Chapter 6 relating to Water Catchments in the Supplementary Statement of Environmental Effects, prepared by GSA Planning, dated 8 April 2025 (Supplementary SEE) and adopt the reasons given to reach the requisite state of satisfaction as follows:

18. The effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6, Biodiversity and Conservation SEPP) because the quality of run-off, waterflow, stormwater run-off, stormwater management, level and the quality of the water table and ground water quality will all be retained as existing on the Site, there will be no change to water flow and maintains the existing stormwater arrangements.

19. All works are within the existing building footprint and will not contribute to erosion. The water quality will be retained as existing so there will be no impact on terrestrial, aquatic or migratory animals or vegetation: s 6.7, Biodiversity and Conservation SEPP.

20. The Site is not located in flood prone land so the Proposed Development will not, if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems: s 6.8, Biodiversity and Conservation SEPP.

21. The Proposed Development will maintain or improve public access to and from natural water bodies for recreational purposes, and, new or existing points of public access between the Site and natural water bodies will be stable and safe (s 6.9, Biodiversity and Conservation SEPP) because:

(a) the proposed works will retain the existing dwelling and will have no impact on recreational land and water uses in the surrounding area; and (b) There is no public access, existing or proposed to the harbour.

5. The character and functions of a working harbour will be retained on foreshore sites, excessive traffic congestion will be minimised in the zoned waterway and along the foreshore and the unique visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be enhanced, protected or maintained, including views and vistas to and from the Foreshores and Waterways Area, and public places, landmarks and heritage items: s 6.28(2), Biodiversity and Conservation SEPP.

6. The proposed works will have no significant environmental impact beyond the Site: s 6.32, Biodiversity and Conservation SEPP.

7. Section 4.6 of the Resilience and Hazards SEPP requires consideration of whether the Site is contaminated. As there is no change in the residential use of the Site, for the purposes of ss 4.6(2) and 4.6(4) of the Resilience and Hazards SEPP, the parties agree, that the Site is located within an established residential area with residential land uses continuing to the present and therefore has a low risk for potential land contamination.

8. The parties explain that there is no knowledge of development either being carried out for a purpose of a development in Table 1 of the Contaminated Land Planning Guidelines or such development being permissible. Furthermore, the proposal is unlikely to experience contamination as excavation is not proposed. On this basis, I am satisfied that further investigation is not necessary.

9. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) requires all alterations and additions in NSW to meet sustainability targets for energy and water use relative to their climate zones.

10. A development application for BASIX development must be accompanied by a BASIX certificate for the development issued no earlier than 3 months before the day on which that application is submitted on the NSW planning portal: s 27, EPA Regulation. The expression "BASIX development" includes development that involves the alterations of a BASIX building costing over $50,000 which in turn, is defined as a building containing at least one dwelling: Sch 7 of the EPA Regulation.

11. Under s 2.1(5) of the Sustainable Buildings SEPP development consent must not be granted to development to which the standards specified in Sch 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified as set out in the Materials Index dated 16 April 2025 prepared by Hecticrat Architects.

12. The Development Application is accompanied by a BASIX Certificate, dated 12 August 2024, in accordance with s 27 of the EPA Regulations. The BASIX Certificate for the proposed development accords with the requirements of the Sustainable Buildings SEPP.

13. The Proposed Development is located on land classified as Class 5 on the Acid Sulfate Soils Map in the WLEP. Works will not lower the water table by 1m and are not located below 5 metres Australian Height Datum. Accordingly, preparation of an Acid Sulfate Soils Management Plan pursuant to cl 6.1 of the WLEP is not required.

14. The WLEP at cl 4.3 prescribes a maximum height of building (HOB) at 9.5m. The Proposed Development and existing dwelling exceed this development standard by 2.6m however, there will be no change to the existing external envelope or extent of built form above the WLEP height plane when compared to the existing structure.

15. The Applicant relies on a Written Request pursuant to cl 4.6 of the WLEP prepared by GSA Planning and dated 15 August 2024, to justify the contravention of the HOB development standard.

16. Clause 4.6(3)(a) requires the applicant to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe), Preston CJ established five potential tests for determining whether a development standard could be considered unreasonable or unnecessary. The Proposed Development satisfies the first test listed in Wehbe in that the objectives of the HOB development standard are achieved notwithstanding non-compliance with the standard. The arguments for a dispensation in the Written Request are as follows:

17. The proposal achieves the desired low-density character of the area. The proposal provides a height, bulk and scale that is generally consistent with that envisaged by Council's controls.

18. The maximum height of the existing building will not be altered by the proposal. Rather, the proposal is for remediation works that maintain the existing building envelope.

19. The area of non-compliance will not result in additional solar access impacts to adjoining buildings and private open space when compared to the existing situation.

20. The extent of height non-compliance is the same as the existing situation.

21. The Proposed Development will not create additional impacts on adjoining properties in respect of privacy, overshadowing, public views or visual intrusion and, although will exceed the HOB development standard, the design is contained within the existing building envelope.

22. The written request sets out sufficient environmental planning grounds to justify contravening the Development Standard as follows:

23. The proposal retains the height of the existing building and ensures there is no additional bulk and scale above the height plane. Therefore, the development will remain compatible with the existing and desired future character of the area, as there will be no change to the existing building height.

24. Strict compliance would require considerable demolition of the existing, heritage significant, built form, which is unrealistic and would be a detrimental planning outcome.

25. The proposed works were supported in the Heritage Impact Statement, prepared by Urbis and dated 21 August 2024, which confirms the development is compatible with the heritage significance of the site.

26. The proposed works include the replacement of the roof, stairwell roof and windows which will improve the structural conditions of the dwelling, with the heritage consultant concluding, inter alia:

“The proposal retains the principal building form and reconstructs a concrete roof as opposed to the former timber structure. The existing structure is fire damaged and is required to be replaced. The original roof was trafficable and accessed via the central tower/ stair core. The proposal is consistent with this. There is no change to building height or form.”

5. Therefore, it can be concluded that the proposed remediation works will be consistent with the character of the area and the heritage significance of the dwelling, and the variation will facilitate the conservation of the existing building and its structural integrity.

6. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the HOB development standard in cl 4.3 of the WLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP.

7. The Site is identified under Sch 5 of the WLEP (item 357) as 'remains of Vaucluse Point ferry wharf'. The dwelling is not included in the listing description. Pursuant to cl 5.10 of the WLEP the effect of the Proposed Development on the heritage significance of the adjacent items, nearby items and surrounding conservation area have been considered in the assessment of the Proposed Development. The parties rely on the joint expert report, filed 24 March 2025, prepared by Zoltan Kovacs, heritage expert for the Applicant and Eleanor Banaag, heritage expert for the Respondent and Alex Been heritage engineering expert for the Applicant and Hari Gohil, heritage engineering expert for the Respondent.

8. The heritage experts concluded that:

9. whilst the existing house, is not a heritage item in its own right, the proposed changes to the building are designed to sympathetically improve internal amenity and the landmark qualities of the existing architecture, improve safety and structural adequacy and retain a form and character that is sympathetic to the Art Deco idiom of the existing building; and

10. the proposed works, will ensure the building remains a landmark, enables the historic character to be legible and interpretable, addresses contemporary living standards and delivers improved environmental performance in alignment with contemporary requirements.

11. A Heritage Impact Statement prepared by Urbis, dated 21 August 2024, concluded the Proposed Development is unlikely to affect nearby heritage values, inter alia:

“This HIS has been prepared to assess the heritage significance of the subject property and further to determine the potential heritage impacts of the development on the heritage significance of 83 Fitzwilliam Road, Vaucluse.

…

The proposal retains the principal form of the building and character of the dwelling albeit with alterations to enhance amenity and bring the dwelling to a contemporary living standard. The subject application seeks approval for further façade works including part infill of eastern balconies and alterations to door and window fenestration to enhance amenity and external access, but importantly retains the streamlined and horizontal character and complements the building form and character. The dwelling retains its prominence and landmark character on Vaucluse Point with proposed modifications providing an elegant design response. There are no significant additions to the principal building form.”

34. 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. I adopt the reasons given by the parties as set out in this judgment.

35. 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.

Notations:

36. The Court notes that Woollahra Municipal Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA331/2024/1 in accordance with the Plans and documents listed below:

| Reference | Title | Prepared By | Date | | Architectural Plan | | 83F_DA – 02 E | Site plan | Tzannes and Hecticrat Architects (in collaboration) | 28/01/2025 | | 83F_DA – 04 E | Lower ground floor plan |

| Reference | Title | Prepared By | Date | | 83F_DA – 05 E | Ground floor plan | | | | 83F_DA – 06 E | First floor plan | | 83F_DA – 07 E | Roof terrace plan | | 83F_DA – 13 E | North elevation | | 83F_DA – 14 E | East elevation | | 83F_DA – 15 E | South elevation | | 83F_DA – 16 E | West elevation | | 83F_DA – 17 E | Section | | 83F_DA – 18 E | Detail section | | 83F_DA – 21 E | Basix commitments | | 83F_DA – 22 E | Demolition plans | | 83F_DA – 20 E | Materials and finishes | Hecticrat Architects | 28/01/2025 | | Documents | | Additional information addressing areas of concern relevant to DA 331/2024 | Tzannes | 13/03/2025 | | Supplementary Statement of Environmental Effects | GSA Planning | 08/04/2025 | | Materials Index | Hecticrat Architects | 16/04/2024 |

Orders:

37. The Court orders:

38. The appeal is upheld.

39. Development Application No. DA331/2024/1, for alterations and additions to an existing dwelling at 83 Fitzwilliam Road, Vaucluse, legally known as Lot 100 in DP 1304245, is approved subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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