Mellick v Woollahra Municipal Council

File Number(s): 2025/451692

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s modification application seeking to modify DA 252/2019/1 (Original Consent). The Original Consent was granted by the Woollahra Local Planning Panel (WLPP) on 7 May 2020 and approved alterations and additions to an existing dwelling and widening of the existing garage and landscaping on Lot 2 in Deposited Plan 567775, known as 30 Wyuna Road, Point Piper (Subject Land). It is noted that the Original Consent was subsequently modified on multiple occasions. The modification application the subject of this appeal, made under s 4.55(1A) of the EPA Act, seeks to amend the Original Consent.

2. 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 (NSW) (LEC Act).

The Modification Application

3. The modification application (DA 252/2019/15) was lodged with the respondent on 31 October 2025 pursuant to s 4.55(1A) of the EPA Act and sought to amend the Original Consent by seeking to amend Condition F.5 of the Original Consent, as modified, by replacing the phrase “any Occupation Certificate” with “the final Occupation Certificate” (Modification Application) as follows:

Condition F.5 – Covenant for Private Works on Council Property

Prior to the issue of any the final Occupation Certificate and to ensure the encroaching structures on Council public road reserve accord with Council’s “Policy for Managing Encroachments on Council Road Reserves”, the person with the benefit of this consent, being the owner of No 30 Wyuna Road, Point Piper, must do the following:

a) Lodge an “Application to Formalise the Encroachment on Council land” with the Council in consultation with Council’s Property & Projects Department AND;

b) Enter into a legal agreement with the Council for the proposed retaining walls and sandstone steps and path as depicted in the architectural plans prepared by Lawton Hurley, referenced DA02-K and DA03-K, dated Feb 2022.

The owner must enter into a legal agreement as follows:

The registration on the title to the subject property to which this consent relates of a Public Positive Covenant pursuant to S88E of the Conveyancing Act 1919 burdening the subject property and benefitting the Council providing for the indemnification of Council from any claims or actions, and the ongoing maintenance of any private structures encroaching on the public road reserve for which consent has been given, such as steps, retaining walls, access ways, overhang, balconies, awnings, signs and the like. This process has an estimated timeframe of 2 months.

The wording of the Public Positive Covenant must be in accordance with Council’s standard format and the Instrument must be registered at the Land Property Information Office prior to the issue of any the final Occupation Certificate.

The property owner must pay Council monetary compensation for the Public Positive Covenant, as determined by the Council, and must also pay all of Council’s associated costs.

Revised Architectural Drawings Ground Floor Plan, prepared by Lawton Hurley (s4.55, issue M, dated 11 November 2024); and

Revised Landscape Plan, prepared by Wyer & Co (Revision 08, dated 11 November 2024).

…

4. The parties agree that the Modification Application does not involve or propose any physical works to the Council land or Subject Land.

5. Further, the Modification Application was not advertised or notified as it was considered that the proposal would not detrimentally affect the enjoyment of surrounding land in accordance with the Woollahra Community Participation Plan 2019.

6. On 19 November 2025, the Modification Application was refused.

7. On 21 November 2025, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s refusal of the Modification Application.

8. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

9. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 24 February 2026. I presided over the conciliation conference.

10. Prior to the conciliation conference, 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. An agreement was filed on 24 February 2026].

11. The decision agreed upon is for the grant of consent to the Modification Application, subject to an amended version of Condition F.5 as follows:

Prior to issue of any Occupation Certificate and to ensure the encroaching structures on Council public road reserve accord with Council's "Policy for Managing Encroachments on Council Road Reserves", the person with the benefit of this consent, being the owner of No. 30 Wyuna Road, Point Piper, must do the following:

a) lodge an "Application to Formalise the Encroachment on Council land" with the Council in consultation with Council's Property & Projects Department AND;

b) enter into a legal agreement with the Council for the proposed retaining walls and sandstone steps and path as depicted in the architectural plans prepared by Lawton Hurley, job no. J306, Issue A, dated 2 December 2025 referenced DA02-K and DA03-K, dated Feb 2022**.**

The owner must enter into a legal agreement as follows:

The registration on the title to the subject property to which this consent relates of a Public Positive Covenant pursuant to S88E of the Conveyancing Act 1919 burdening the subject property and benefiting the Council providing for the indemnification of Council from any claims or actions, and the ongoing maintenance of any private structures encroaching on the public road reserve for which consent has been given, such as steps, retaining walls, access ways, overhang, balconies, awnings, signs and the like. This process has an estimated timeframe of 2 months.

The wording of the Public Positive Covenant must be in accordance with Council’s standard format and the Instrument must be registered at the Land Property Information Office prior to issue of any Occupation Certificate.

The property owner must pay Council monetary compensation for the Public Positive Covenant, as determined by the Council, and must also pay all of Council’s associated costs.

The Positive Covenant must be registered on the certificate of title for 30 Wyuna Road, Point Piper prior to the issue of any Occupation Certificate. Evidence of registration must be provided to the PCA prior to the issue of any Occupation Certificate.

Note: The required wording of the Instrument can be downloaded from Council’s web site www.woollahra.nsw.gov.au. The PCA must supply a copy of the WAE Plans to Council together with the Occupation Certificate.

Note: No Occupation Certificate must be issued until this condition has been satisfied.

12. 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.

Jurisdictional considerations

13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

14. The applicant is the registered proprietor of the Subject Land and provided consent to the Modification Application when it was lodged with the respondent.

15. The Site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. I accept the parties’ submission that there is no basis to refuse the Modification Application having regard to the WLEP on the basis that the Modification Application does not propose any material works to the built form.

16. For the purposes of s 4.55(1A)(a) of the EPA Act, I am satisfied that the Modification Application will have no or minimal environmental impact. This is because the proposed modifications to Condition F.5 purely relate to procedural matters relating to the legal use of land owned by the respondent.

17. For the purposes of s 4.55(1A)(b) of the EPA Act, the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. I have formed this view on the basis that there are no qualitative or quantitative changes proposed by the application.

18. In relation to s 4.55(1A)(c), the respondent has confirmed that the Modification Application as lodged was not required to be notified due to the nature of the amendments sought works.

19. Consequently, the requirements in s 4.55(1A)(d) of the EPA Act are not relevant.

20. For the purposes of s 4.55(3) of the EPA Act, in determining the Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Modification Application. Similarly, I have considered the reasons given by the consent authority for the grant of the Original Consent, and am satisfied that there is no impediment to the approval of the Modification Application having regard to those reasons.

21. I accept the parties’ submission that it is satisfied that the requirements of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered in the grant of the Original Consent, with that consideration remaining unchanged for the purposes of the Modification Application which does not seek to vary the scope of the land assessed under the original assessment. Further, the parties agree and I accept that the Subject Land has a long standing historical residential use and is unlikely to be contaminated.

22. I accept the parties’ submission that the proposed modification of Condition F.5 will have no impact on the requirements of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

23. 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.

Orders

15. The Court orders that:

16. The appeal is upheld.

17. Development Consent No DA 252/2019/14 is modified in the terms set out in Annexure A.

18. Development Consent No DA 252/2019/15 as modified by the Court is set out in Annexure B.

N Targett

Commissioner of the Court

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Annexure A.142 KB.pdf

Annexure B.1.03 MB.pdf