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[2026] NSWLEC 1146
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-24
Targett C
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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: MD Living Pty Ltd v Woollahra Municipal Council [2026] NSWLEC 1146
Hearing dates: Conciliation Conference 13 March 2026
Date of orders: 24 March 2026
Decision date: 24 March 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The Applicant’s written request made pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) seeking to vary the Height of Buildings development standard set out in cl 180(2)(b) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) is upheld.
(2) The Applicant’s written request made pursuant to cl 4.6 of the WLEP seeking to vary the Number of Stories development standard set out in cl 175(2) of the Housing SEPP is upheld.
(3) The appeal is upheld.
(4) Development Application No. DA156/25/1 (as amended) seeking consent for the demolition of two dwelling houses and construction of a residential flat building at Lots A and B in Deposited Plan 321385, also known as 28 and 30 Hamilton Street, Rose Bay, is determined by the grant of consent subject to the conditions in Annexure A.
(5) The applicant is to pay the respondent’s costs thrown away by reason of the amendment of Development Application DA156/25/1 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $32,389 within 28 days of these orders.
Catchwords: APPEAL – Development application – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.11
Land and Environment Court Act 1979 (NSW), ss 8.15, 17, 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Housing) 2021, Chs 4, 6, ss 144, 145, 147, 175, 177, 180, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
Woollahra Local Environmental Plan 2014, cll 4.1, 4.3, 4.4, 4.6, 5.21, 6.1, 6.2
Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Woollahra Community Participation Plan
Woollahra Development Control Plan 2015
Category: Principal judgment
Parties: MD Living Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation: Counsel:
H Kahagalle (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Thomson Geer (Applicant)
Woollahra Municipal Council (Respondent)
File Number(s): 2025/311669
Publication restriction: Nil
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application DA156/25/1 (Development Application). The Development Application sought consent for the demolition of two existing houses and construction of a residential flat building comprising six-storeys with two levels of basement car parking on land identified as Lots A and B in Deposited Plan 321385, known as 28 and 30 Hamilton Street, Rose Bay 2029 (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Development Application was lodged with the respondent on 14 May 2025.
The Development Application was publicly notified between 4 June and 4 July 2025 in accordance with Chapter 6 of the Woollahra Community Participation Plan. 29 submissions were received in response to the notification.
On 14 August 2025, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.
The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 24 February 2026. Following this, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement was provided to the Court on 10 March 2026 following the applicant agreeing to amend the Development Application (Amended Development Application). The signed s 34 agreement is supported by an agreed jurisdictional statement. The agreed amendments to the Development Application relevantly include:
geotechnical and hydrogeological amendments including in respect of the proposed methodology and monitoring;
increase in the setback of the upper three levels to improve streetscape;
provision of communal open space on the roof;
amendment of the side boundary presentation to improve privacy; and
amendment of the built form at the rear to increase solar access to adjoining properties.
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.
(a) it has considered whether the land is contaminated; and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application because the Subject Land is located within the Sydney Harbour Catchment. Division 2 in Pt 6.2 sets out general controls applying to development in a regulated catchment.
Section 6.6 of the BC SEPP relating to water quality and quantity, requires a consent authority to consider the matters listed in s 6.6(1) and to not grant development consent unless the consent authority is satisfied of the matters listed in s 6.6(2). The parties agree, and I accept, that the matters listed in s 6.6(1) and 6.6(2) have been considered and satisfied having regard to the jurisdictional statement and the following documents (collectively, the Stormwater Documents):
Stormwater Management Plan prepared by SDS Engineering dated 16 June 2025;
Geotechnical and Hydrogeological Investigation Report prepared by Morrow Geotechnics dated 10 February 2026 (Geotechnical Report);
Dewatering Management Plan prepared by Morrow Geotechnics dated 11 December 2025;
Site Hydrogeology Report prepared by Morrow Geotechnics dated 28 July 2025; and
Agreed Conditions of Consent.
Section 6.7 of the BC SEPP relating to aquatic ecology, requires a consent authority to consider the matters listed in s 6.7(1) and to be satisfied of the matter listed in s 6.7(2). The parties agree, and I accept that the matters have been considered and satisfied, as relevant, having regard to the Stormwater Documents.
Section 6.8 of the BC SEPP relating to flooding, requires a consent authority to consider the matters listed in s 6.8(1) and be satisfied of the matters listed in s 6.8(2). The parties agree, and I accept, that the matters have been considered and satisfied, having regard to the Stormwater Documents, Flood Risk Management report prepared by SDS Engineering dated 11 December 2025 (Flood Report) and Statement of Environmental Effects prepared by GSA Planning dated May 2025 (SEE) (see p 17).
Section 6.9 of the BC SEPP relating to recreation and public access, requires a consent authority to consider the matters listed in s 6.9(1) and be satisfied of the matters listed in s 6.9(2). The parties agree, and I accept, that the matters have been considered and satisfied, having regard to the Stormwater Documents.
The parties agree and I accept that, s 6.10 of the BC SEPP relating to total catchment management, has been satisfied and that consultation is not required in relation to this proposal.
The parties agree that Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Amended Development Application as the proposed development relates to residential apartment development under s 144 of the Housing SEPP.
Section 145(2) of the Housing SEPP requires the consent authority to refer the application to the design review panel for the local government area in which the development will be carried out for advice on the quality of the design of the development. The parties confirm that a design review panel does not exist in the Woollahra local government area.
Section 147 of the Housing SEPP requires the consent authority to have considered the matters listed in s 147(1) of the Housing SEPP (which includes the Apartment Design Guide (ADG)) before granting consent.
The parties agree, and I accept, that the Amended Development Application is satisfactory in light of the principles set out in Sch 9 of the Housing SEPP and the ADG, having regard to the SEPP 65 Design Statement prepared by ESS Lifestyle dated 6 May 2025 (Class 1 Application, tab 8) and ADG Workbook (Class 1 Application, tab 9) which address the requirements of s 147(1) of the Housing SEPP.
The parties agree that Ch 6 of the Housing SEPP relating to low and mid rise housing applies to the Amended Development Application as the Subject Land is relevantly located within the “low and mid rise inner area” for the purposes of the Chapter.
Section 175 of the Housing SEPP relating to relevant development standards for low and mid rise housing inner area relevantly provides at s 175(2) that development consent must not be granted for development for the purposes of residential flat buildings with a building height of up to 22m unless the consent authority is satisfied the building will have six storeys or fewer (Storey Development Standard). The parties agree that the proposed development is for seven storeys if the rooftop lift lobby is considered to be a storey, representing a contravention of Storey Development Standard.
The Amended Development Application is accompanied by a cl 4.6 variation request prepared by GSA Planning dated 13 January 2026 (Storey Request). The Storey Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the Woollahra Local Environmental Plan 2014 (WLEP) and concludes that:
Compliance with the Storey Development Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the principles of the Housing SEPP (in lieu of stated objectives relating to the Storey Development Standard specifically).
There are sufficient environmental planning grounds to justify the contravention because:
(a) the proposed storey exceedance is substantially setback from the front façade and the development will comprise a compliant appearance when viewed from the street; (b) the exceedance relates entirely to the provision of equitable access to the communal rooftop space; and (c) notwithstanding the exceedance, the proposal will reasonably maintain neighbours’ privacy, solar access and views.
In respect of the Storey Request, the applicant has demonstrated that compliance with the Storey Development Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Storey Development Standard in accordance with the requirements under cl 4.6(3) of the WLEP.
For the purposes of s 177 of the Housing SEPP relating to landscaping – residential flat buildings or shop top housing, the parties agree, and I accept, that the Tree Canopy Guide for Low and Mid Rise Housing has been considered as part of the proposed development, including in respect of proposed tree canopy and deep soil levels.
For the purposes s 180 of the Housing SEPP relating to non-discretionary development standards – residential flat buildings and shop top housing in Zone R3 or R4, the parties agree and I accept that:
The Amended Development Application complies with the maximum floor space ratio of 2.2:1 (FSR Development Standard) under s 180(2)(a).
The Amended Development Application contravenes the maximum building height of 22m (Height Development Standard) under s 180(2)(b) proposing a height of 23.274m.
The Amended Development Application is accompanied by a cl 4.6 variation request prepared by GSA Planning dated December 2025 (Height Request). The Height Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the WLEP and concludes that:
Compliance with the Height Development Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the height of building objectives set out in cl 4.3 of the WLEP.
There are sufficient environmental planning grounds to justify the contravention because:
(a) The extent of the variation is minor and limited to an upper portion of the roof terrace access. The exceedance will not be discernible from a compliant built form. (b) The proposal will maintain neighbours’ privacy, solar access and views at a compliant level. (c) The exceedance will not impact the streetscape or amenity, or existing or desired future characteristics of the precinct.
The Subject Land is zoned R3 Medium Density Residential under the WLEP. Accordingly, residential flat buildings are permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:
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.
Pursuant to cl 4.1A of the WLEP relevantly relating to minimum lot sizes for residential flat buildings, the Subject Land is subject to a minimum lot size control of 700m2. The Subject Land has a total area of 1,106m2.
Pursuant to cl 4.3 of the WLEP relating to height of buildings, a maximum height of 9.5m applies to the Subject Land. However, noting the Height Development Standard of 22m established under the Housing SEPP at [28] above, and the Height Request justifying its exceedance, the Amended Development Application may be approved notwithstanding cl 4.3 of the WLEP.
Pursuant to cl 4.4 of the WLEP relating to floor space ratio (FSR), a maximum FSR development standard of 1:1 applies to the Subject Land. However, noting the FSR Development Standard of 2.2:1 established under the Housing SEPP at [28] above, the parties agree, and I accept, that the Amended Development Application does not exceed the relevant FSR Development Standard.
Pursuant to cl 5.21 of the WLEP relating to flood planning, parts of the Subject Land are within the flood planning area and therefore, the consent authority must consider the matters listed in cl 5.21(3) and be satisfied of the matters in cl 5.21(2). The parties agree, and I accept, that the matters in cl 5.21(3) and cl 5.21(2) have been relevantly considered and satisfied having regard to the Flood Report.
Pursuant to cl 6.1 of the WLEP relating to acid sulfate soils, the parties agree, and I accept that, the Subject Land is identified as Class 5 land however the requirements of cl 6.1(3) are not enlivened as the Amended Development Application does not propose any works identified at cl 6.1(2) of the WLEP.
Pursuant to cl 6.2 of the WLEP relating to earthworks, the consent authority must consider the matters specified in cl 6.2(3) when deciding whether to grant consent for earthworks. I note that significant concerns regarding the geotechnical aspects of the proposal have been raised by residents and note that the parties agree that:
the groundwater table is below the proposed excavation level of the project; and
the proposal will be subject to stringent conditions, including the provision of relevant dilapidation reports for properties within the likely zone of influence, further geotechnical and hydrogeological design and certification, prescribed maximum vibration limits, and geotechnical, hydrogeological and vibration monitoring (see agreed conditions including Conditions B.10, B.12, D.19, D.20, D.21, D.22, F.8, F.9, F.10 and F.11).
The parties agree, and I accept, that the matters listed in cl 6.2(3) have been considered having regard to the Geotechnical Report, Stormwater Documents and agreed conditions of consent.
The matters set out in s 4.15(1)(b), (c) and (e) of the EPA Act are addressed in the SEE (see pp 25-29).
As set out at [4] above, for the purposes of s 4.15(d) of the EPA Act, the Development Application was publicly notified between 4 June and 4 July 2025 in accordance with Chapter 6 of the Woollahra Community Participation Plan. 29 submissions were received in response to the notification raising concerns including:
misapplication of Ch 6 of the Housing SEPP to the Subject Land and Rose Bay more generally;
existing and desired future character;
overdevelopment of the site;
amenity impacts including overshadowing, privacy, loss of outlook and reduced ventilation;
engineering issues including geotechnical and hydrogeological concerns;
inadequate information regarding flooding, traffic and adequacy of infrastructure;
non-compliances with the ADG;
traffic and parking;
landscaping and environmental impacts; and
construction impacts.
In addition, the Court heard from five objectors at the conciliation conference on 13 March 2026 raising concerns including:
the geotechnical and hydrogeological impacts of the proposal and damage to surrounding properties;
dwelling mix and lack of more affordable unit types; and
functionality of the roof space including operation of communal open space and utilities and equipment.
I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.
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.
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.
The Court notes that the respondent, as the relevant consent authority, has agreed pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA156/25/1 to include the amended plans and additional reports listed below:
| TAB | DOCUMENT | DATE | | 1 | Development Application Form | Undated | | 2 | Architectural Plans prepared by ESS Lifestyle: (a) A0000 Cover (Rev. CT03) (b) A1001 Plan: Location (Rev. CT02) (c) A1002 Plan: Site Analysis (Rev. CT02) (d) A1003 Plan: Existing/Demolition (Rev. CT02) (e) A2201 Plan: Basement -2 (Rev. CT02) (f) A2202 Plan: Basement -1 (Rev. CT02) (g) A2203 Plan: Ground (Rev. CT02) (h) A2204 Plan: Level 01 (Rev. CT03) (i) A2205 Plan: Level 02 (Rev. CT03) (j) A2206 Plan: Level 03 (Rev. CT03) (k) A2207 Plan: Level 04 (Rev. CT03) (l) A2208 Plan: Level 05 (Rev. CT03) (m) A2209 Plan: Level 06 (Rev. CT03) (n) A2210 Plan: Roof (Rev. CT03) (o) A2211 Plan: Ground_Context (Rev. CT01) (p) A2212 Plan: Level 01_Context (Rev. CT01) (q) A2213 Plan: Level 02_Context (Rev. CT01) (r) A2214 Plan: Level 03_Context (Rev. CT01) (s) A2215 Plan: Level 04_Context (Rev. CT01) (t) A2216 Plan: Level 05_Context (Rev. CT01) (u) A2401 Areas: GFA, Deep Soil, Excavation (Rev. CT02) (v) A2601 Views from the Sun, Table (Rev. CT02) (w) A2602 Views from the Sun, Communal Open Space (Rev. CT03) (x) A2603 Views from the Sun, Communal Open Space (Rev. CT03) (y) A2604 Views from the Sun, Communal Open Space (Rev. CT03) (z) A2605 Views from the Sun, POS/Living Glazing (Rev. CT03) (aa) A2606 Views from the Sun, POS/Living Glazing (Rev. CT03) (ab) A2607 Views from the Sun, POS/Living Glazing (Rev. CT03) (ac) A2701 Solar Access – Views from the Sun (Rev. CT02) (ad) A2702 Solar Access – Views from the Sun (Rev. CT01) (ae) A3101A Elevation: South / West (Streetscape 01) (Rev. CT03) (af) A3101B Elevation: South / West (Streetscape 02) (Rev. CT03) (ag) A3102 Elevation: North / East (Fence) (Rev. CT03) (ah) A3103 Elevation: North / East (No Fence) (Rev. CT03) (ai) A3104 Elevation: South / East (Fence) (Rev. CT03) (aj) A3105 Elevation: South / East (No Fence) (Rev. CT03) (ak) A3106 Elevation: North / West (Fence) (Rev. CT03) (al) A3107 Elevation: North / West (No Fence) (Rev. CT03) (am) A3201 Section: AA (Rev. CT03) (an) A3202 Section: BB (Rev. CT03) (ao) A3203 Section: CC (Rev. CT02) (ap) A7001 Schedule: Window (Rev. CT02) (aq) A7002 Schedule: Door (Rev. CT02) (ar) A8201 Schedule: External Materials (Rev. CT02) (as) A9001 Adaptable: Apartment 2.02 (Rev. CT02) | Undated 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 16 December 2025 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 16 December 2025 21 November 2025 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 8 January 2026 16 December 2025 16 December 2025 16 December 2025 16 December 2025 | | 3 | Landscape Plans (Rev. F) prepared by Contour Landscape Architecture: (a) C1 Landscape Plan – Ground Floor (b) C2 Plant Schedule & Plant Images – Ground Floor (c) C3 Plant Images 2 - Ground Floor (d) C4 Planting Plan - Level 1 (e) C5 Planting Plan - Level 2 (f) C6 Planting Plan - Level 3 (g) C7 Planting Plan - Level 6 (h) C8 Landscape Details (i) C9 Landscape Specification (j) C10 Tree Canopy Plan | 18 December 2025 | | 4 | Arboricultural Impact Assessment Report prepared by Stride Landscape Design | 17 December 2025 | | 5 | Geotechnical & Hydrogeological Investigation Report (Rev. 3) prepared by Morrow Geotechnics | 10 February 2026 | | 6 | Dewatering Management Plan (Rev. 1) prepared by Morrow Geotechnics | 11 December 2025 | | 7 | BASIX Certificate No. 1777323M_03 prepared by NSW Department of Planning, Housing & Infrastructure | 18 December 2025 | | 8 | BASIX Requirements Summary prepared by Chapman Environmental Services | Undated | | 9 | NatHERS Certificates prepared by Chapman Environmental Services: (a) NatHERS Certificate No. 0011900990-01 (b) NatHERS Certificate No. 0011901014-01 (c) NatHERS Certificate No. 0011901055-01 (d) NatHERS Certificate No. 0011901071-01 (e) NatHERS Certificate No. 0011901022-01 (f) NatHERS Certificate No. 0011900982-01 (g) NatHERS Certificate No. 0011907748-01 (h) NatHERS Certificate No. 0011901048-01 (i) NatHERS Certificate No. 0011901063-01 (j) NatHERS Certificate No. 0011901089-01 (k) NatHERS Certificate No. 0011901006-01 (l) NatHERS Certificate No. 0011901030-01 | 18 December 2025 | | 10 | NatHERS Certificate (Class 2 Summary) No. 0011612600 prepared by Chapman Environmental Services | 18 December 2025 | | 11 | Clause 4.6 Variation Request (Height of Buildings) prepared by GSA Consulting | December 2025 | | 12 | Clause 4.6 Variation Request (No. of Storeys) prepared by GSA Consulting | 13 January 2026 | | 13 | Noise Impact Assessment (Rev. 2) prepared by Acoustic Logic | 17 December 2025 |
The Court orders that:
The Applicant’s written request made pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) seeking to vary the Height of Buildings development standard set out in cl 180(2)(b) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) is upheld.
The Applicant’s written request made pursuant to cl 4.6 of the WLEP seeking to vary the Number of Stories development standard set out in cl 175(2) of the Housing SEPP is upheld.
The appeal is upheld.
Development Application No. DA156/25/1 (as amended) seeking consent for the demolition of two dwelling houses and construction of a residential flat building at Lots A and B in Deposited Plan 321385, also known as 28 and 30 Hamilton Street, Rose Bay, is determined by the grant of consent subject to the conditions in Annexure A.
The applicant is to pay the respondent’s costs thrown away by reason of the amendment of Development Application DA156/25/1 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $32,389 within 28 days of these orders.
Annexure A (936 KB, pdf)
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Added "Woollahra Community Participation Plan" citation on the cover page.
MD Living Pty Ltd
Woollahra Municipal Council [2026] NSWLEC 1146