Nakhle v Council of the Municipality of Woollahra

Texts Cited: Woollahra Local Environmental Plan 2014
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Category: Principal judgment

Parties: Paulus Saleem Nakhle (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation: Counsel:
S Griffiths (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/266235

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) for modifications to Court-granted consent number DA440/2017/1 for demolition of the existing residential flat building and construction of a new three-storey residential flat building containing six dwellings and basement parking (approved development) at 12 Kent Road, Rose Bay, legally described as Lot C in Deposited Plan 448601 (site).

2. The modifications, as amended, are:

3. Redesign of the approved roof to provide a partly pitched roof and a central flat section with photovoltaic cells.

4. Updated façade treatments, including alternative balustrade and column treatments to the front façade, deletion of the approved portico, replacement of sliding doors with bifold doors on the east and west elevations, updates to balustrade treatments to terraces, and addition of fire shutter hoods around operable windows.

5. Redesign of Level 2 to provide one 4-beroom unit (reducing the overall number of units from 6 units to 5 units).

6. Addition of a disabled platform stair lift, extension of the approved terrace to Unit 1, nomination of bathroom and kitchen exhaust vent locations.

7. Revised pedestrian entry and service locations (waste storage, fire hydrant, gas, water meters, stormwater, car park exhaust).

8. The approved development has physically commenced on site, and has previously been modified under DA440/2017/2 and DA440/2017/4.

9. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (Court Act). I presided over the conciliation conference, which was held on 2 April 2025. The parties reached agreement at the conference as to the terms of a decision in the proceedings that would be acceptable to the parties.

10. Under s 34(3) of the Court 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 4.55 of the EPA Act to modify the development consent.

11. The agreement reflects Council's approval of amendments to the modification application pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

12. There are preconditions to the exercise of power to modify the development consent under s 4.55 of the EPA Act. The parties’ signed agreement is supported by an agreed statement of jurisdictional prerequisites (statement). Based on the statement, the Joint Expert Reports prepared by the parties’ heritage and town planning experts, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act. I have considered the reasons given by the Court as consent authority for the grant of consent in Nakhle v Woollahra Municipal Council [2020] NSWLEC 1188.

13. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reasons discussed below.

14. Qualitatively, the proposal will not radically alter or transform the external form or appearance of the approved development, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views, visual bulk and compatibility with the heritage conservation area. The qualitative changes may be summarised as follows:

15. Change in the roof form to retain a partial pitch but introduce a central flat section, providing for improved internal amenity and for the inclusion of photovoltaic cells;

16. Revisions to façade and external treatments, revisions to servicing; and

17. Addition of a disabled platform stair lift.

18. There are no changes to the use of the site as a residential flat building or the overall character or appearance to the development approved under the existing consent. The experts and the parties agree, and I accept, that the development will appear substantially the same.

19. Quantitatively, the proposed development as modified does not change the height or gross floor area. The number of dwellings is reduced from 6 units to 5 units.

20. Having regard to the original and modified application I consider that the fundamental characteristics and essence of the proposed development remain unchanged by the proposed modification, and that the changes are not significant when considered qualitatively or quantitatively in the context of the development as a whole.

21. I have considered the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the proposed development.

22. I have considered the relevant clauses of the Woollahra Local Environmental Plan 2014 (LEP). The proposed development is in the R3 Medium Density Residential zone and remains permissible and consistent with the zone objectives. The amended application is not compliant with the height or floor space ratio controls in cll 4.3 and 4.4. As confirmed by Pepper J in SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [31] to [36], cl 4.6 does not apply and is not relevant for modification applications. I accept the advice of the parties that there is no change to the proposed development’s compliance with these or other development standards under WLEP.

23. I am satisfied that the requirements of cl 5.10 (heritage), 5.21 (flood planning), 6.1 (acid sulphate soils) and 6.2 (earthworks) are met.

24. I note that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 and of State Environmental Planning Policy (Biodiversity and Conservation) 2021 were considered in the grant of the original consent. The proposed development remains compliant with these.

25. The modification application was notified in accordance with the Woollahra Community Participation Plan 2023 and s 4.55(2)(c) of the EPA Act. No submissions were received. The Court also heard from submitters on site at the start of the conciliation conference. These submissions were considered in the preparation of Council's statement of facts and contentions and in the amendments to the proposed development.

26. Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Regulation.

27. The parties also advised me that they have considered Woollahra Development Control Plan 2015 and that the proposal is generally compliant or otherwise satisfactory in their considered view.

Conclusion

20. Based on the above details, 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 Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

22. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders:

23. The Court orders:

24. The appeal is upheld.

25. Development consent number DA440/2017 is modified in the terms in Annexure A.

26. Development consent number DA440/2017, as modified by the Court, is Annexure B.

……………………….

A Thorpe

Acting Commissioner of the Court

Annexure A

Annexure B

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