Ox DBH Pty Ltd v Woollahra Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 4.15, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Fisheries Management Act 1994 (NSW)
Water Management Act 2000 (NSW)
Environmental Planning and Assessment Regulation 2021, s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Div 17, s 2.120
Woollahra Local Environmental Plan 2014, cll 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: Ox DBH Pty Ltd (Applicant)
Woollahra Council (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Woollahra Council (Respondent)

File Number(s): 2024/442431

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 393/2024. The development application, as amended 393/2024/1, seeks consent for demolition of an existing building and construction of a 5-storey plus basement mixed use commercial development. The development is proposed at 413-417 New South Head Road, Double Bay 2028, legally known as Lot 1 DP 513073.

2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held 12 May 2025. Following the conciliation, the Court adjourned the proceedings and the parties continued negotiations and ultimately reached agreement on the terms of the resolution of the proceedings. The agreement was filed with the Court on 8 July 2025. That agreement is for the grant of the application, as amended, subject to conditions.

3. 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged by the owner of the land to which the development application relates: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified publicly from 16 October to 15 November 2024. Two objections were received in relation to the development application. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The development application is accompanied by a Preliminary Site Investigation, prepared by EI Australia dated 30 August 2024 which confirms that the site has continuously been used for commercial activities since at least 1940s. Further, the development application is accompanied by a Remediation Action Plan (RAP), prepared by EI Australia dated 22 May 2025. The RAP concludes that the site can be made suitable for its proposed use through the implementation of the procedures described in it. Compliance with the RAP is required by the conditions of consent at Annexure A.

7. Part 6.2 ‘Development in regulated catchments’ of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural stormwater plans and the stormwater modelling, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment.

8. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed, nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.

9. Chapter 2, Div 17 Roads and Traffic of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies as the site has frontage to New South Head Road, a State Road with an annual average daily traffic volume of more than 20,000 vehicles (>39,000 vehicles).

10. Section 2.120 of SEPP TI provides that development consent for the purposes of residential accommodation must not be granted unless appropriate measures will be undertaken to ensure that acoustic levels do not exceed LAeq levels of 35 dB(A) for any bedroom at any time between 10 pm and 7 am. The development application includes an Amended Noise Impact Assessment prepared by Pulse White Noise Acoustics dated 17 June 2025. This assessment confirms that the development application includes appropriate measures to ensure the noise levels contained within this section are complied with. I can be satisfied that the relevant provisions of SEPP TI have been adequately considered.

11. The Woollahra Local Environmental Plan 2014 (LEP 2014) zones the land as E1 Local Centre. The proposed development is permissible with consent in the zone. In determining the development application, I gave consideration to the objectives of the zone which are:

To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

To encourage investment in local commercial development that generates employment opportunities and economic growth.

To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.

To ensure development is of a height and scale that achieves the desired future character of the local centre.

To encourage development that is compatible with the local centre’s position in the centres hierarchy.

To ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces.

To maximise public transport patronage and encourage walking and cycling.

To encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates.

9. Pursuant to cl 2.7 of the LEP 2014, demolition is permissible with consent.
10. Clause 4.3 of the LEP 2014 provides for a maximum height for the site of 18.1m. The proposed development breaches the development standard seeking a maximum height of 21.78m. The development application seeks an exception to the development standard. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by GSA Planning and in accordance with cl 4.6 of LEP 2014, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2014). I find that the objectives of the height standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2014). In particular, I find that the reasons articulated in the written request in relation to the exceedance of the height standard being consistent with the existing built form of the specific locality. (c) The states of satisfaction required by cl 4.6 of LEP 2014 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

11. Clause 4.4 of the LEP 2014 provides for a maximum floor space ratio (FSR) for the site of 2.5:1. The proposed development breaches the development standard seeking a maximum FSR of 3.66:1. The development application seeks a variation to the development standard. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by GSA Planning and in accordance with cl 4.6 of LEP 2014, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2014). I find that the objectives of the FSR standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2014). In particular, I find that the reasons articulated in written request in relation to the exceedance of the FSR standard being consistent with the existing built form of the specific locality and allows for the provision of additional commercial floor space consistent with the development of the local centre. (c) The states of satisfaction required by cl 4.6 of LEP 2014 have been reached and there is, therefore, power to grant development consent to the proposed development, notwithstanding the breach of the FSR control.

12. Pursuant to cl 5.10 Heritage Conservation of LEP 2014, I note that the site does not contain any heritage items, nor does it form part of a Heritage Conservation Area (HCA). However, the site is in proximity to a local heritage item 1208 known as the Golden Sheaf Hotel (Sch 5, Pt 1 of LEP 2014). A consideration of the interaction of the proposed development with the heritage item is contained in the Statement of Environmental Effects accompanying the development application. I accept the parties agreement that the proposed development will not have any discernible impact on the heritage values of that item.

13. Clause 5.21 Flood Planning in the LEP 2014 applies to the site as it is within the identified flood planning area. The development application is supported by the Amended Civil Design Report prepared by AT&L, which includes a Flood Risk Assessment. The report confirms that the proposed structures will incorporate flood-compatible building components, such as flood barrier protection at all proposed entries fronting New South Head Road and Kiora Lane, up to the nominated Flood Planning Level (FPL). All affected service infrastructure within the site will also be flood-proofed to this level. A Flood Emergency Management Plan will be prepared prior to the occupation of the building to facilitate the safe and efficient evacuation of residents. This plan will outline flood management and mitigation measures, which will be incorporated into both the design and ongoing operation of the development. Further, the Amended Civil Design Report confirms that the proposal will not adversely affect flood behaviour. Accordingly, I accept that the requirements of cl 5.21 of LEP 2014 have been satisfied.

14. Pursuant to cl 6.1 Acid Sulfate Soils of LEP 2014 the site is identified as being affected by Class 2 Acid Sulfate Soils on the Acid Sulfate Soils Map. The development application is supported by an Acid Sulfate Soils Management Plan prepared by EI Australia which provides procedures for the management of potential impacts caused by acid sulfate soils during construction phase, ensuring compliance with LEP 2014. I can be satisfied that the requirements of cl 6.1 of LEP 2014 have been met.

15. Clause 6.2 Earthworks applies as the development application involves excavation for the basement and lift pit. The development application is accompanied by the Preliminary Geotechnical Investigation prepared by EI Australia. Further, appropriate conditions of consent have been included to address required earthworks and the potential impacts of same. In determining whether to grant development consent, I have given consideration to the matters at cl 6.2 and find that none warrant the refusal of the applicant.

16. Woollahra Development Control Plan 2015 (DCP 2015) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

17. For these reasons, 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.

18. As the parties’ decision is one 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.

Notes

6. The Court notes that:

7. Council of the Municipality of Woollahra, as the relevant consent authority, has agreed, under ss 37 and 38 of the EPA Regulation 2021, to the Applicant amending Development Application No. DA393/2024/1 to include the following documents:

| Schedule of amendments, prepared by SRH Architecture Pty Ltd dated 11 June 2025 including as follows: a. 3D height plane & context diagrams. b. Setbacks - envelope comparison against recently approved DA at 453-475 New South Head Road. c. Pedestrian Amenity - Through-site link width increased to 2.8m. 3D images provided to show activation. d. Hotel amenity precedent images. e. Additional shadow diagrams. f. Height images (Lift overrun). | 11 June 2025 | | (Amended) Architectural Plans, prepared by SRH Architecture, Rev A & B, dated 21 May 2025: • DA000 – Cover page – Rev B • DA001 – Site Plan / Site Analysis – Rev B • DA002 – Existing Ground Floor & Level 01 – Rev B • DA003 – Existing Level 02 & Roof Plan – Rev B • DA004 – Demolition Plan Ground Floor & Level 1 – Rev B • DA005 – Demolition Plan Level 002 Roof – Rev B • DA100 – Basement Plan – Rev B • DA101 – Ground Floor & Level 01 Plan – Rev C • DA102 – Level 02 & Level 03 Plan – Rev B • DA103 – Level 04 & Roof Plan – Rev B • DA110 – Area calculations – Rev B • DA150 – Shadow Diagrams – 0900 Winter Solstice – Rev B • DA151 – Shadow Diagrams – 1000 Winter Solstice – Rev A • DA152 – Shadow Diagrams – 1100 Winter Solstice – Rev A • DA153 – Shadow Diagrams – 1200 Winter Solstice – Rev B • DA154 – Shadow Diagrams – 1300 Winter Solstice – Rev A • DA155 – Shadow Diagrams – 1400 Winter Solstice – Rev A • DA156 – Shadow Diagrams – 1500 Winter Solstice – Rev B • DA200 – North & South Elevations – Rev B • DA201 – East & West Elevations – Rev B • DA300 – Section 1 – Rev B • DA301 – Section 2 – Rev B • DA302 – Section 3 – Rev B • DA400 – Material Schedule - Rev B • DA600 – Photomontage – New South Head Road – Rev B • DA601 – Photomontage – Kiaora Lane – Looking East – Rev B • DA602 – Photomontage – Kiaora Lane – Looking West – Rev B • DA603 – Project Imagery – Rev B • DA700 – Notification Plan – Rev B | 21 May 2025 (Rev A & B) 11 June 2025 (Rev C) | | (Amended) Clause 4.6 (FSR), prepared by GSA planning | May 2025 | | (Amended) Clause 4.6 (Height), prepared by GSA planning | May 2025 | | (Amended) Plan of management, prepared by SRH Architecture, Rev C | 17 June 2025 | | (Additional) Remediation Action Plan, prepared by EI Australia | 22 May 2025 | | (Amended) Noise Impact Assessment (Rev 4), prepared by Pulse White Noise Acoustics | 17 June 2025 | | (Amended) Stormwater Layout plan, prepared by SRH Architecture and at&l: • DN 24-12222-DAC000 – Cover Sheet and Locality Plan – Rev B – 11 June 2025 • DN 24-12222-DAC001 – General Notes – Rev B – 11 June 2025 • DN 24-12222-DAC002 – General Arrangement Plan and Typical Sections – Rev B – 11 June 2025 • DN 24-12222-DAC401 –Ground Floor and Roof Plan– Rev B – 11 June 2025 • DN 24-12222-DAC405 – Typical Details – Rev B – 11 June 2025 • DN 24-12222-DAC450 – Music Catchment Plan – Rev C – 11 June 2025 • DN 24-12222-DAC601 – Erosion and Sediment – Rev B – 11 June 2025 | 11 June 2025 | | (Amended) Civil and flood design report, Rev 3, prepared by at&l | 11 June 2025 | | (Additional) MUSIC model | - |

Orders

7. The Court orders that:

8. The appeal is upheld.

9. Development Application No. DA393/2024/1, as amended, for a demolition of existing building and construction of a 5-storey mixed-use commercial development including two levels of hotel use with roof terrace and basement at 413-417 New South Head Road, Double Bay 2028 is determined by the grant of consent subject to the conditions at Annexure ‘A’.

10. The Applicant agrees to pay the Respondent’s costs thrown away by the amendment in the amount of $12,000 exclusive of GST within 28 days of the date of this order.

……………………….

D Dickson

Commissioner of the Court

(Annexure A) (689 KB, pdf)

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