MHN Design Union Pty Ltd v Woollahra Municipal Council

Cases Cited: MHN Design Union PTY LTD v Woollahra Municipal Council [2024] NSWLEC 1408
MHN Design Union Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1083

Texts Cited: Woollahra Municipal Council, Woollahra Community Participation Plan, June 2023

Category: Principal judgment

Parties: MHN Design Union Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor)(Applicant)
S Patterson (Solicitor)(Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/193956

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Application pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an application to the Court pursuant to s 4.55(8) of the EPA Act to modify development consent DA172/2023/1 (the Consent) granted by the Court on 18 July 2024 (MHN Design Union PTY LTD v Woollahra Municipal Council [2024] NSWLEC 1408) as modified by the Court in proceedings 2024/422000 approved by the Court on 18 February 2025 (MHN Design Union Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1083). The proposed modifications for which approval is sought at 54 Streatfield Road, Bellevue Hill 2023 legally described as SP8639 (the Site) can be described as follows (Proposed Modification):

2. Modify the approved building envelope;

3. redesign the driveway ramp;

4. partially infill the recessed areas along the northern and southern side elevations and internal reconfiguration;

5. relocate the pool pump equipment; and

6. make minor refinements to the external articulation including planter box overhands and balconies.

7. The parties attended without prejudice meetings and discussions. A Joint Expert Report was filed 29 August 2025 prepared by the parties’ town planning experts Brett McIntyre, for the Respondent and George Karavanas for the Applicant filed 29 August 2025 (JER Planning) to address the merit contentions relating to bulk and scale (Contention 1) and built form – articulation to second floor level (Contention 2) and public interest (Contention 3) in the Statement of Facts and Contentions filed 29 July 2025.

8. The JER Planning annexes a final set of amended plans, referred to as the Rev H Plans, which resolved the Council contentions by reintroducing articulation on the upper level of the dwelling.

9. The Planning experts dealt with the Rev H plans which resolve Contention 1 and they state in the JER Planning at 1.0 as follows:

“The experts agree that the amended proposal provides an inset of 2m-long and 600mm-deep along the northern side elevation of the second floor level (see Figure 1). This results in reduction of GFA from 443m2 to 441m2 and a considerable improvement of the building articulation, when compared to the lodged scheme. The bulk, scale, mass and appearance of the amended proposed building are considered appropriate.

Accordingly, the experts agree that this contention is now satisfied.”

5. In relation to Contention 2 they were also able to reach agreement and at 2.0 of the JER Planning state as follows:

“The experts agree that the amended proposal provides an inset of 2m-long and 600mm-deep along the northern side elevation of the second floor level, resulting in an unarticulated wall of maximum 10.165m. The amended proposal complies with Control C5 which requires a maximum unarticulated wall length of 12m, and satisfies Objective O2 in Part B3.2.3 of the WDCP which requires side elevations to be well articulated.

As a result, the experts agree that this contention is resolved.”

6. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 14 October 2025. I presided over the conciliation conference.

7. 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 approving the Proposed Modification subject to conditions.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to approve a modification to a consent.

10. 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 s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement provided to the Court.

11. The owner of the land is Lanms Pty Ltd. They gave their consent to the lodgement of the development application on 15 May 2023, as can be seen in the Development Application Form and Owner’s Consent Form, filed with the Court as part of the Class 1 Application. The owner also provided an updated consent dated 14 October 2025 to include making amendments to the development application pursuant to s 4.55 of the EPA Act.

12. Section 4.55(8) of the EPA Act provides as follows:

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.

13. Pursuant to s 4.55(2)(a) of the EPA Act, the Applicant’s planner provided an assessment of the Proposed Modification as compared with the Consent in a s 4.55(8) Assessment Report dated 16 May 2025 filed with the Class 1 Application. In that Assessment Report at p 11, Mr Karavanas concludes that in his opinion the Proposed Modification is substantially the same as the consent for the following reasons:

“In quantitative terms, the proposed modifications will retain the number of bedrooms, storeys and car spaces. The building height and setbacks will also be retained approved. While the works will increase the gross floor area slightly, it is due to the infill of the approved recessed areas which remain within the approved building envelope and will not increase the visible bulk and scale of the dwelling. In addition, the proposed modifications will retain the deep soil areas and tree canopy areas within the site.

In qualitative terms, the proposed modifications will not significantly increase the bulk and scale, alter the overall building type, reduce solar access to neighbouring properties. The modification will not result in any view impacts, nor will they lead to any additional privacy impacts.”

14. In this regard, the parties also agree that the following matters contribute to the conclusion that the Proposed Modification development is substantially the same:

15. The Modification Application is largely a development within substantially the same envelope save for the infilling of some areas of articulation as the Development Consent;

16. the height of the development is the same;

17. there is additional gross floor area (GFA) however the mechanism for the calculation of the GFA has changed because of the fact that Council reintroduced a floor space ratio (FSR) whereas the Development Consent was subject to a floorplate control. The additional floorspace does not change the typology of development nor does it cause for the development to be materially different;

18. the change to the articulation of the building form and location of windows and other internal changes do not change the building form or add any amenity impacts to adjoining properties; and

19. the amendments do not affect the understanding of the dwelling from the street nor does it impact on the streetscape.

20. The Modification Application was notified in accordance with the Council’s Woollahra Community Participation Plan between 2 July 2025 to 17 July 2025. No submissions were received on behalf of members of the community. The parties advise that a neighbour separately sought a copy of the Rev H Plans and that they made no objection to the proposal.

21. 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 I have set out in this judgment.

22. 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:

18. The Court notes that:

19. Woollahra Municipal Council, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending its modification application in accordance with the documents below:

| Reference | Description | Author/Drawn | Date(s) | | DA-04 DA-05 DA-06 DA-07 DA-08 DA-09 DA-10 DA-11 DA-12 DA-13 DA-14 All Revision H | Architectural Plans | MHNDUNION | All dated 11/08/2025 |

Orders:

19. The Court orders:

20. The modification application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) is approved.

21. Development consent DA172/2023/1 granted by the Land and Environment Court on 18 July 2024 and as modified by DA172/2023/2 approved on 18 February 2025 is modified in the terms in Annexure A.

22. Development consent DA172/2023/1 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

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Annexure A (68.5 KB, pdf)

Annexure B (523 KB, pdf)