Oliver-Frost v Woollahra Municipal Council

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2024/422017

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a modification application appeal filed directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to DA-70/2023/1 at 588 New South Head Road, Point Piper (Lot 1 DP952343). The modification application seeks internal and external modifications including changes to accommodate services, modifications to the swimming pools, introduction of non-trafficable areas, increased privacy measures to the ground and first floors, new gym and bathroom area, conversion of north-eastern balconies to increased living areas, and other internal modifications.

2. The respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending DA-70/2023/2 in accordance with the documents listed below (amended application):

| Reference | Description | Author/Drawn | Date(s) | | DA0000 Rev I Cover Page DA2001 Rev I Roof Plan DA2002 Rev I Basement Plan DA2003 Rev I Mezzanine DA2004 Rev I Ground Floor Plan DA2005 Rev I Level 1 Floor Plan DA2006 Rev I Level 2 Floor Plan DA3001 Rev I Elevations North and South DA3002 Rev I Elevations East and West DA3101 Rev I Sections A DA3102 Rev I Sections B DA3103 Rev I Section C DA6001 Rev I Schedule of External Finishes DA9301 Rev I Waste Management Plan SK.1 Rev I Privacy Sections SK.2 Rev I Privacy Sections SK.3 Elevations Facing 1-3 Wolseley Road | Architectural Plans | MHNDUNION | 25/03/2025 | | 1371184M_04 | BASIX Certificate | | 12/05/2025 |

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties on 20 May 2025. I presided over the conciliation conference.

4. 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 granting the modification application and modifying the development consent. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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.

Jurisdictional Prerequisites

6. 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 and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

7. I am satisfied that owners consent accompanied the modification application (s 98 of the EPA Reg).

8. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications to accommodate services, internal changes, changes to the swimming pool areas, changes to the rear building envelope and increased living areas are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by GSA Planning (SEE) and the jurisdictional statement (s 4.55(2)(a) of the EPA Act).

9. With respect to s 4.55(2)(c) and (d) of the EPA Act, the modification application was notified between 4 December 2024 to 19 December 2024. Four submissions were received, two opposed and two in objection. The Court and parties also heard oral objections from one objector at the commencement of the proceedings, which assisted the parties in understanding the concerns raised. As the parties have entered into an agreement, the Court is not able to consider the merits of a proposal. The parties have advised the Court that the concerns raised have been considered in the amended plans.

10. The original development application did not require any approvals but required concurrence for the driveway access. No changes are proposed to the previously approved driveway or acoustic measures that formed part of the previous approval. I accept that revised concurrence is not required (s 4.55(2)(c) of the EPA Act).

11. The amended application is accompanied by an amended BASIX certificate (1371184M_04) that satisfies s 100 of the EPA Reg.

12. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the amended Class 1 appeal and supported by the jurisdictional statement. The primary changes relate to an increase in the now applicable floor space ratio development standard, which the parties agree the objectives have been met, increased deep soil overall and along the front setback, and minor increase in excavation volume from 1593.33m3 to 1600.69m3. I have considered the reasons for the grant of consent, noting that the original consent was also an agreement between the parties and the reasons are limited to jurisdiction see: Oliver-Frost v Woollahra Municipal Council [2024] NSWLEC 1289 (s 4.55(3) of the EPA Act).

Conclusion

13. 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.

14. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

15. 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

16. The Court orders:

17. The appeal is upheld.

18. Development consent DA-70/2023/1 is modified in the terms in Annexure A.

19. Development consent DA-70/2023/1 as modified by the Court is Annexure B

S Porter

Commissioner of the Court

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Annexure A.173.KB.pdf

Annexure B.1.23.MB.pdf