Liberiou v Woollahra Municipal Council

Parties: Anthony Liberiou (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
K Glanville (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2024/449265

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the decision of the Council of the Municipality of Woollahra (Council) to refuse Development Application No 2024/371/1 (DA).

2. The DA relates to land known as 549 New South Head Road, Bellevue Hill, legally described as Lot B in DP 320310 and Lot B in DP 333226 (site). The DA seeks consent for a new parking space, driveway and vehicular gate accessible via Victoria Road (the site has boundaries to both Victoria Road and New South Head Road)

Conciliation brings agreement based on amending plans and supporting material

3. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 2 July 2025, and at which I presided.

4. Prior to the formal conciliation conference, the parties had 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 DA, in accordance with the amended plans and supporting material which Council has approved pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 and subject to conditions.

Jurisdictional considerations

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreed decision, provided it is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]).

6. It is my finding that there are no such constraints. But there are certain jurisdictional pre-requisites (findings of satisfaction or the like) which require attention before the function of upholding the appeal can be exercised. A note on jurisdictional prerequisites, explaining why the parties believe upholding the appeal, in this instance is within the Court’s power, provided to the Court on 26 June 2025, has been of assistance here. Regarding jurisdiction, and noting this advice from the parties, I agree the decision to uphold the appeal is within power. Relevant matters requiring positive findings of the Court are outlined below.

Woollahra Local Environmental Plan 2014

7. The site is zoned R2 Low Density Residential under Woollahra Local Environmental Plan 2014 (WLEP) and it is clear the proposal is permissible in the zone with consent. I have considered the zone objectives.

8. The parties advise that the proposed development would not contravene any development standards.

9. While no jurisdictional findings are required in relation to this, the parties’ jurisdictional note indicates how Council has considered all other relevant matters under WLEP, including in relation to heritage (cl 5.10), earthworks (cl 6.2) and tree canopy cover (cl 6.9(3).

State Environmental Planning Policy (Resilience and Hazards) 2021

10. I accept the advice of the parties that the site has previously been used for residential purposes and that there is little likelihood at all of contamination. The requirements of s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 are satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

11. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the site, being adjacent to a classified road. Section 2.119(2) brings requirements for satisfaction. In this instance I accept the advice of the parties and am satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

12. This is clear because the DA is to establish a new off-street parking and road access to the site, which would be accessed via Victoria Road, which is not a classified road. There are no changes proposed to the frontage or street access via New South Head Road.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. The site is located within the Sydney Harbour Catchment and therefore Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 is a consideration in determining the DA. There are a number of considerations and requirements for findings of satisfaction in that regard. The parties advise that due consideration has been given to, relevant provisions relating to:

14. the impacts of the development on water quality and quantity: s 6.6(1);

15. the impacts of the development on aquatic ecology: s 6.7(1);

16. the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems: s 6.8(1); and

17. the likely impact of the development on recreational land use and public access around foreshores: s 6.9(1).

18. I now turn to the relevant points requiring a finding of satisfaction. These are:

19. the development has a neutral or beneficial effect on water quality and that impact on water flow in a natural waterbody will be minimise: s 6.6(2);

20. the development will not have an adverse impact on various aspects of aquatic ecology, waterbodies, or wetlands: s 6.7(2); and

21. the development will improve or maintain public access, any new access points are safe, and safeguarding of public access: s 6.9(2).

22. I am advised that the parties are satisfied with respect to each relevant point. The parties’ reasoning includes that (jurisdictional note pars 42-44):

“42. The Proposal is a minor alteration to an existing dwelling house to establish an additional off-street parking space, and as such, represents a minor change from the existing land use. The property itself is not immediately adjacent to any waterbodies or wetlands, being approximately 144m from any natural waterbodies, and proposes no changes to public access to foreshores. The land is also not identified as being flood prone. Given the minor extent of changes from the existing dwelling, the Court can be satisfied there would be no change to the existing impacts.

43. The development is not located in any of the specific areas identified in Part 6.2 Div 3. As such, these clauses are not triggered.

44. The development is not for any of the specific purposes identified in Part 6.2 Div 4. As such, these clauses are not triggered.”

16. This advice is reasonable and accepted in this instance. I am satisfied with respect to each of the matters listed at [14].

Other considerations

17. I note the advice of Council that the DA was notified in accordance with requirements and that no submissions were received. The parties have advised the requirement of s 4.15(1) of the EPA Act have been taken into consideration.

Conclusion

18. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

19. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

20. The Court notes that:

21. Woollahra Municipal Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the Applicant amending development application No. 372/2024/1 in accordance with the following plans and documentation (Amended Application):

(a) Amended Plans prepared by Derek Raithby Architecture:

| Drawing No. | Description | Revision | Date | | 36 | Vehicle Crossing | 6 | June 2025 | | 37 | Vehicle Crossing 02 | 5 | June 2025 | | 38 | Vehicle Crossing 03 | 5 | June 2025 |

(b) Amended Statement of Heritage Impact prepared by Weir Phillips Heritage dated 5 May 2025.

2. The Applicant has subsequently filed the Amended Application with the Court on 26 June 2025.

Orders

21. The Court orders that:

22. The appeal is upheld.

23. Development consent is granted to development application No. 2024/372/1 lodged with the Respondent on 18 September 2024 for the construction of a new parking space, driveway and vehicular gate upon Victoria Road at 549 New South Head Road, subject to the conditions set out in Annexure 'A'.

P Walsh

Commissioner of the Court

Annexure A (495 KB, pdf)

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