Oliver-Frost v Woollahra Municipal Council

Category: Principal judgment

Parties: Nigel Graham Oliver-Frost (Applicant)
Woollahra Municipal Council (Respondent)

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

File Number(s): 2025/347601

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 (NSW) (EPA Act). The modification application seeks internal and external modifications to the approved development at 588 New South Head Road, Point Piper (Lot 1 DP 952343).

2. The Respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the applicant amending DA70/2023/3 in accordance with the documents listed below (amended application):

| Reference | Description | Author/Drawn | Date(s) | | DA0000 Rev L Cover Page DA2001 Rev L Roof Plan DA2002 Rev L Basement Plan DA2003 Rev L Mezzanine DA2004 Rev L Ground Floor Plan DA2005 Rev L Level 1 Floor Plan DA2006 Rev L Level 2 Floor Plan DA3001 Rev L Elevations North and South DA3002 Rev L Elevations East and West DA3101 Rev L Section A DA3102 Rev L Section B DA3103 Rev L Section C DA6001 Rev L Schedule of External Finishes DA9301 Rev L Waste Management Plan | Architectural Plans | MHNDUNION | 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 21/01/2026 | | 1371184M_07 | BASIX Certificate | NSW Department of Planning and Environment | 24/02/2026 |

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 27 February 2026. I presided over the conciliation conference.

4. The parties have reached agreement as to the terms of a decision that is acceptable to both parties. 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

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

7. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owner’s consent

8. I am satisfied that owner’s consent accompanied the modification application as the Applicant is the owner of the site (s 98 of the EPA Reg).

9. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by GSA Planning dated 9 September 2025 (SEE) and the jurisdictional statement (s 4.55(2)(a) of the EPA Act).

10. With respect to s 4.55(2)(c) and (d) of the EPA Act, the modification application was notified between 6 October 2025 to 23 October 2025. One objection was received. The parties have advised the Court that they considered the concerns raised in the written objection and where possible, that these have been addressed through amendments made to the proposal.

11. 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).

12. The amended application is accompanied by an amended BASIX certificate (1371184M_07) that satisfies s 100 of the EPA Reg.

13. 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 minor modifications across the development with an overall small decrease in floor space ratio. 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

14. 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.

15. 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.

16. 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

17. The Court orders:

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

19. Development consent DA70/2023/2 as modified on 23 May 2025 is modified by DA70/2023/3 in the terms in Annexure A.

20. Development consent DA70/2023/2 as modified by DA70/2023/3 is Annexure B**.**

S Porter

Commissioner of the Court

Annexure A (128 KB, pdf)

Annexure B (1.26 MB, pdf)

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