McMillan v Woollahra Municipal Council

Representation: Counsel:
P Tomasetti SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Colin, Biggers & Paisley (Applicant)
Wilshire, Webb, Staunton Beattie (Respondent)

File Number(s): 2025/274316
2025/197444

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) following the refusal of modification applications DA 510/2019/6 and DA 510/2019/7 by the Council of the Municipality of Woollahra, seeking to modify development consent DA 510/2019/1 that granted development consent to alterations and additions to an existing dwelling house with the construction of a new swimming pool and cabana at 16 Olphert Avenue, Vaucluse (the Original Consent).

2. It is commonly held that the original consent has been modified on a number of occasions prior to these proceedings.

3. In the case of proceedings 2025/197444, modification application DA 510/2019/6 was lodged with the Council on 6 March 2025, seeking deletion of three conditions of consent, namely:

4. Condition C.1(e) that is in the following terms:

“In order to minimise the bulk of the cabana as viewed form the adjoining property, the height of the proposed cabana (inclusive of green roof) must not exceed a height of RL 56.800 to AHD.”

2. Condition C.1(f)(i) that is in the following terms:

“To ensure a satisfactory view sharing outcome, the 8 x syzygium resilience must be replace with another lilly pilly variety that attains a maximum mature height not exceeding 3.5m (RL 57.500AHD) from the finished ground level (RL 54.000AHD).”

3. Condition C.1(f)(ii) that is in the following terms:

“To ensure a satisfactory view sharing outcome, the 1 x magnolia grandiflora adjacent to the eastern side boundary fence must be replaced with a species that attains a maximum mature height not exceeding 1.9m from the finished ground level.”

4. In the case of proceedings 2025/274316, modification application DA 510/2019/7 was lodged with the Council on 3 June 2025 seeking the deletion of the condition of consent Condition C.1(g) that provides as follows:

“All 1.8m high boundary pool fencing is to be palisade open fencing to facilitate view sharing.”

5. On 23 May 2025, the Applicant appealed the refusal of modification application DA 510/2019/6.

6. On 17 July 2025, the Applicant appealed the deemed refusal of modification application DA 510/2019/7.

7. The appeal was listed for mandatory conciliation on 29 August 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

8. The conciliation commenced with an onsite view, at which the Court was taken to vantage points on a neighbouring property at 18 Olphert Street and asked to observe the view and certain stringlines that had been erected to assist the Court in understand the degree of impact likely occur on the views enjoyed from 18 Olphert Street.

9. It was noted that properties adjoining the subject site are currently under construction including 18 Olphert Avenue and 77 Hopetoun Avenue to the rear.

10. The conciliation conference then reconvened at Court where without prejudice discussions were held. The Applicant agreed to amend the proposal, by the amendment of wording the proposed conditions of consent.

11. Accordingly, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 29 August 2025, in accordance with s 34(10) of the LEC Act.

12. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

13. In general terms, the agreement approves the development subject to amendment of the conditions cited at [3] and [4], and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

14. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

15. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Environmental Planning and Assessment Act 1979

16. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

17. The Original Consent approved alterations and additions to an existing dwelling house with the construction of a new swimming pool and cabana.

18. I am 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. The scope of the proposed modifications are, to my understanding, minor changes to landscape planting and materials in respect of elements evident in the Original Consent, with negligible environmental impact resulting when the terms of the modification application, as amended, are understood.

19. I have also considered the submissions arising from the notification of the Modification Applications, including those made onsite at [8] in accordance with s 4.55(2)(d) of the EPA Act. The matters set out in the submissions received by the Council are substantially to do with view impact. The Council is satisfied that the amendments agreed to by the Applicant resolved the impact on views, when the approved envelope of 77 Hopetoun Avenue, and height and location of the cabana is understood.

Environmental Planning and Assessment Regulation 2021

20. 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.

21. The Modification Applications have been made by the owners of the site, who provide written consent.

22. The modification applications are accompanied by a BASIX Certificate (Cert No A1746501_02 dated 07 May 2024) prepared by De Moyer Architecture in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), and consistent with the provisions at, s 100(3) of the EPA Regulation.

Woollahra Local Environmental Plan 2014

23. I have also taken into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application.

24. The site is located in an area designated R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP), in which the proposed development is permitted with consent, where consistent with the following objectives for development in the R2 zone:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• 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.

25. The proposal includes a green roof over the pool cabana, and certain plantings to the boundary common to No’s 16 and 18 Olphert Street. As such, I have considered whether the development incorporates planning and design measures to retain and plant trees to minimise the urban heat island effect, and conclude the proposal will not adversely impact the existing tree canopy in the area, in accordance with cl 6.9 of the WLEP.

Conclusion

26. 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.

27. 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.

28. The Court notes that Woollahra Council, as the relevant consent authority, under s 113 of the EPA Regulation, approves the amending of modification application modification application DA 510/2019/6 and modification application DA 510/2019/7 by the terms of those conditions of consent contained at Annexure C.

Orders

29. The Court orders that:

In proceedings 2025/197444:

1. The appeal is upheld.
2. Development Consent DA 510/2019/6 is modified in the terms set out in Annexure A.

In proceedings 2025/274316

1. The appeal is upheld.
2. Development Consent DA 510/2019/7 is modified in the terms set out in Annexure B.
3. Development Consent DA 510/2019/7 as modified by the Court is set out in Annexure C.

T Horton

Commissioner of the Court

197444.25 (Annexure A) (102 KB, pdf)

274316.25 (Annexure A) (87.0 KB, pdf)

Annexure B (613 KB, pdf)

**********