Potter v Woollahra Municipal Council

Cases Cited: Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
Potter v Woollahra Municipal Council [2023] NSWLEC 1757

Category: Principal judgment

Parties: Collette Potter (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
P Tomasetti SC (Applicant)
S Hill (Solicitor) (Respondent)
Solicitors:
Dentons Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/140644

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicant appealed against the deemed refusal of DA 360/2024/1 lodged on 20 September 2024 (DA) with Woollahra Municipal Council (Council), in relation to Lot 100 in Deposited Plan 1278603 known as 26-28 Wolseley Road, Point Piper NSW (Site).

2. The DA seeks development consent for alterations to the existing dwelling including a new swimming pool in the rear yard, altered internal access to the approved garage and car lift, and renovation of the boat shed, and the construction of a second dwelling on the power part of the Site in the form of an attached dual occupancy with connectivity via the existing dwelling, an indoor subterranean pool, site landscaping, and other associated works (Proposal).

3. The Site has a total area of 1,276m2. It has an irregular rectangular shaped configuration from Wolseley Road to Sydney Harbour. The eastern (front) boundary has a frontage to Wolseley Road of 21.365m. The southern (side) boundary to No 22-24 Wolseley Road has a length of 82.239m

*Figure 1 – Location of the subject site, outlined in red (*Heritage Impact Statement by Urbis, p 7, filed 24 July 2025, and being Ex E to Heritage Joint Expert Report filed 24 July 2025)

4. The improvements on the Site consist of:

5. A three-storey dwelling, constructed of rendered masonry with a tiled roof facing onto Wolseley Road. The dwelling is a local heritage item being Item No. I291 as listed in Sch 5 of the Woollahra Local Environmental Plan 2014 (WLEP 2014). The heritage listing is for the “buildings and interiors”.

6. A separate double garage is built to the street front alignment. The garage is approved to be demolished and replaced with a new garage structure with subterranean mechanised parking pursuant to development consent DA316/2019/1.

7. A two-storey boat house with an associated boat ramp / jetty and terrace is located at the western (lower) end of the Site, adjoining the Sydney Harbour waterfront. The DA proposed to do works to the boatshed, but this part of the Proposal has been removed from the DA.

8. DA602/2021/1 was granted by the Land and Environment Court of NSW in Potter v Woollahra Municipal Council [2023] NSWLEC 1757 as a result of a s 34(1) Agreement under the Land and Environment Court Act 1979 (NSW) (LEC Act) on 12 December 2023. This authorises the construction of a dwelling on the lower part of the site (in the form of an attached dual occupancy with connectivity via the existing dwelling), as well as landscaping, drainage and associated works. It is noted that the development consent has not yet become operable.

9. The Site is located to the western side of Wolseley Road, at the junction with Wentworth Street.

10. The Site is steep with a significant east to west fall of approximately 32m, from the Wolseley Road frontage to the boundary to Sydney Harbour. There is negligible fall across the Site between the northern and southern boundaries.

11. The Applicant is the owner of the land and gave her consent to the lodgement of the DA in accordance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) (Class 1 Application, tab 4). The Council is the authorised consent authority to determine the DA in accordance with s 4.5(d) of the EPA Act.

12. The Site is generally zoned R3 Medium Density pursuant to cl 1.7, cl 2.3 and the Land Use Map of the WLEP 2014 (R3 Zone). The objectives of the R3 Zone are:

13. To provide for the housing needs of the community within a medium density residential environment.

14. To provide a variety of housing types within a medium density residential environment.

15. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

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

17. To ensure development conserves and enhances tree canopy cover.

18. On 11 April 2025 the Applicant commenced these proceedings in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.

19. On 15 May 2025 the Woollahra Local Planning Panel determined the DA by way of refusal. Reasons for refusal were published on 20 May 2025.

20. Council filed its Statement of Facts and Contentions (SOFAC) on 26 May 2025.

21. The parties filed an Agreement pursuant to s 34(3) of the LEC Act on 27 August 2025 (s 34 Agreement).

22. As set out in the s 34 Agreement, the Applicant prepared amended plans and documents which resolved or satisfactorily addressed the contentions in Council’s SOFAC.

23. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the LEC Act.

24. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

25. The Court arranged a conciliation conference and hearing under s 34AA of the LEC Act between the parties. The parties conciliated before the Court on 25, 26, and 27 August 2025. I presided over the conciliation conference.

26. 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 noting the Council’s consent to the Applicant relying upon amended plans and documents, upholding the appeal and granting consent to the DA pursuant to s 4.16(1) of the EPA Act subject to the conditions of consent in Annexure A.

27. 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. 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 they had been satisfied as set out below.

28. The parties negotiated amendments to the plans which are detailed in the Applicant’s Schedule of Amendments in the Amended Application Documents filed 27 August 2025 (Amended DA), tab 9, and in summary were:

29. Confirmation that as many of the existing original internal materials in the heritage item will be retained;

30. Further deep soil retention to permit deep soil planting;

31. Retention of the Boatshed (in its present form);

32. Amendments to the plantings which are reflected in the further landscape notes.

Environmental Planning Instruments pursuant to s 4.15(1)(a) of the EPA Act

Woollahra Local Environmental Plan 2014

20. The Site is located in the R3 Zone. Attached dual occupancy developments are permissible with consent in the R3 Zone.

21. Clause 4.1A of the WLEP 2014 prescribes a minimum lot size of 460m2 for dual occupancy developments on R3 Zoned land. The Site has an area of 1,268m2. The parties agree that the Court can be satisfied that the minimum lot size requirements are met.

22. Clause 4.3(2A) of WLEP 2014 provides that the maximum height of a dual occupancy on land in Zone R3 is 9.5m. The proposed secondary dwelling height of building has a maximum height of 8.9m, and it therefore complies with the control.

23. The existing heritage listed dwelling is 13.9m in height and exceeds the height of building control. As the DA does not exceed the height of the existing dwelling, a cl 4.6 variation of development control request is not required, as per Justice Duggan’s decision in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 [39]-[41].

24. The Site is identified as “Area 6” on Council’s Floor Space Ratio Map. Pursuant to cl 4.4E(3)(a) of the WLEP 2014 the Site has a floor space ratio (FSR) of 0.75:1.

25. The DA proposes a FSR of 0.981:1. The Applicant filed a Clause 4.6 Variation Request by Robert Chambers of BBC Consulting Planners dated 25 August 2025 (Amended Application Documents filed 27 August 2025, tab 1) (BBC cl 4.6 Request). The BBC cl 4.6 Request considered the objectives of cl 4.6 of the WLEP 2014, the principles and relevant authorities, and noted inter alia:

“The proposed FSR, notwithstanding the requested variation to the FSR standard, is appropriate for the conditions of the site and its context. The majority of residential properties along the waterfront are on battle-axe lots. The subject site is one of only 3 properties along this section of Wolseley Road that does not have a building adjacent to the waterfront and accommodating additional GFA on the rear part of the site in a sensitive and well-designed manner is reasonable and appropriate…

The proposal has been designed to complement and enhance the existing streetscape character of Wolseley Road and the Point Piper area generally…

The proposal is consistent with the overall planning intent for the surrounding R3 Medium Density Residential zoned area…

The proposed non-compliance will neither be out of character in the local context nor unreasonable in relation to the scale, location, footprint or other aspects of nearby dwellings”

26. The parties are in agreement that the cl 4.6 variation of the FSR control is unreasonable and unnecessary in the circumstances, and that there are sufficient environmental planning grounds to justify the contravention of the development standard.

27. The Site is listed in Sch 5 of the WLEP 2014 as Local Heritage item No. I291 – “buildings and interiors”. The listing relates to the existing dwelling on the eastern, upper portion of the Site addressing Wolseley Road.

28. Clause 5.10(4) of the WLEP 2014 requires the consent authority to consider the effect of the proposed development on the heritage significance of the heritage item. The heritage experts, Professor R MacKay AM and Ms K Wellfare, conferred and prepared a Joint Expert Report which was filed on 24 July 2025. In the Joint Expert Report the experts agreed that the Amended DA minimises the impact of the proposal on the cultural significance of the heritage item by retaining more original internal fabric of the heritage item. During the onsite inspection for the conciliation conference the experts indicated the amendments they had required to the plans to retain more of the original internal fabric, and where there was original fabric not retained they pointed out the superior planning outcome. The heritage experts advised orally that although the listing was for “buildings and interiors” they could not find any details, beyond the original plans, of a heritage assessment of the interior of the dwelling.

29. The parties are satisfied that the amended DA has considered and minimised the impact of the development on the heritage significance of the existing building and its interiors.

30. The Site is mapped as acid sulfate soils Class 5.

31. Clause 6.1 of the WLEP 2014 requires development consent for the carrying out of works on Class 5 land within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land.

32. The Site is not within 500m of any Class 1 – 4 land, and will not lower the water table below 1m on any land within 500m of Class 1 – 4 land.

33. Therefore, the parties are satisfied that consent under cl 6.1 of the WLEP 2014, an acid sulfate soils management plan, or a preliminary assessment is not required.

34. Clause 6.2(3) of the WLEP 2014 requires a consent authority in deciding whether to grant development consent for development involving ancillary earthworks, to consider the matters listed in subcll (a) – (h) of cl 6.2(3). The Geotechnical Investigation dated 30 August 2024 (Class 1 Application, tab 23) addresses these matters. The parties are satisfied that the requirements of cl 6.2(3) of the WLEP 2014 have been appropriately considered.

35. The Site is identified as having two foreshore building lines:

36. A 12m foreshore building line, and

37. A 30m foreshore building line.

38. Clause 6.4(2) of the WLEP 2014 provides that development consent must not be granted for development on land in foreshore area 12 unless the development is for the purposes of:

(a) the extension, alteration or rebuilding of an existing building that is wholly or partly in foreshore area 12, or

(b) a boat shed, sea retaining wall, wharf, slipway, jetty, waterway, access stairs, swimming pool or fence.

37. Clause 6.4(3) of the WLEP 2014 provides that development consent must not be granted for the purposes of a residential flat building or multi-dwelling housing on land in the 30m foreshore building line unless the development is for the purposes of the extension, addition, alteration or rebuilding of an existing building that is wholly or partly in the 30m foreshore building line.

38. As the Amended DA is for an attached dual occupancy development and not for a residential flat building or multi-dwelling housing, cl 6.4(3) of the WLEP 2014 does not apply.

39. The Amended DA has removed works to the existing boatshed and the rebuilding of access stairs. Accordingly, cl 6.4(4) of the WLEP 2014 does not apply.

40. Clause 6.9(3) of the WLEP 2014 requires a consent authority to consider whether the development:

(a) incorporates planning and design measures to enable the retention and planting of trees to minimise the urban heat island effect, and

(b) will avoid, minimise or mitigate adverse impacts on the existing tree canopy.

41. The Amended DA includes significant landscaping, including the retention of five existing trees and the planting of twenty-seven new trees on the Site, which will enhance the existing tree canopy. There are 18 lilly pilly trees which are sited on the northern boundary and at the Council’s request these trees are being retained. Originally, they were to be removed and replaced with other trees and shrub. The 18 lilly pilly trees are not included in the count of ‘five existing trees’ or the planting of ‘twenty-seven new trees’. The tree canopy coverage on the Site will also increase from 32% to 48%. The parties are satisfied that cl 6.9(3) of the WLEP 2014 has been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

42. The Site is located within Sydney Harbour Catchment boundary. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to water catchments including the Sydney Harbour Catchment.

43. Section 6.6(1) of the BC SEPP lists matters concerning development consent to development on land in a regulated catchment which a consent authority must consider before granting development consent.

44. Section 6.6(2) of the BC SEPP requires a consent authority to be satisfied that the development ensures:

(a) The effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and

(b) The impact on water flow in a natural waterbody will be minimised.

45. The Stormwater Plans (Class 1 Application, tabs 15 and 16) address s 6.6 of the BC SEPP. The development includes a stormwater treatment system. The parties have considered the matters in s 6.6 of the BC SEPP.

46. The Site is partially mapped as being in the Sydney Harbour Foreshores and Waterways Area. The consent authority must consider the matters in s 6.28 of the BC SEPP. The Amended DA has been designed to be of an appropriate scale, form, design and siting to reinforce and enhance the visual character and scenic quality of Sydney Harbour. The Amended DA is characterised by the significant and extensive landscaping. The parties agree that the Amended DA will not adversely impact on views and vistas to and from the Harbour.

47. The Site is partially mapped as seagrass proximity (40m) on the Sydney Harbour Rocky Foreshores and Significant Seagrasses Map. Section 6.32 of the BC SEPP lists matters of which a consent authority must be satisfied before granting consent.

48. The Amended DA does not propose any works in the area mapped as seagrass proximity. The Statement of Environmental Effects by BBC Consultant Planners (Class 1 Application, tab 5 p 35) states that the DA will not adversely impact on the nearby seagrass and ecological community. The parties are satisfied that the requirements of s 6.32 of the BC SEPP are met.

49. Section 6.33 of the BC SEPP does not apply because the Amended DA has deleted the works to the boatshed.

State Environmental Planning Policy (Sustainable Buildings) 2022

50. A BASIX Certificate for the Amended DA has been provided (Amended Application Documents filed 27 August 2025, tab 10).

State Environmental Planning Policy (Resilience and Hazards) 2021

51. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) requires that before granting consent a consent authority is to consider whether the land is contaminated, and if so, whether it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

52. The SEE (Class 1 Application, tab 5 p 33) states that the Site has a low risk of contamination due to the residential use of the Site since at least 1943. The Amended DA continues the historic residential use of the Site. The parties are satisfied that cl 4.6 of the RH SEPP has been met.

Notification

53. The DA was notified and advertised between 9 October 2024 to 24 October 2024. The Council received four submissions. The issues raised in the submissions are listed in par 32(a) – (m) of Council’s SOFAC. Council has considered the issues raised. Prior to the commencement of the conciliation conference on site on 25 August 2025, I accepted oral submissions from those objectors in attendance, and their nominated experts. The provisions of s 4.15(1)(d) of the EPA Act have been met.

54. I consider the Amended DA is in the public interest in accordance with s 4.15(1)(e) of the EPA Act.

55. For the reasons set out above, 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, and it is therefore not necessary for me to proceed with the hearing pursuant to s 34AA of the LEC Act.

56. 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. I shall uphold the WLEP 2014 s 4.6 variation of the FSR control, uphold the appeal and grant development consent in accordance with s 4.16(1) of the EPA Act. I am satisfied that the conditions of consent comply with s 4.17(1) of the EPA Act and the relevant principles.

57. I am not required to consider the merit issues in these proceedings, and I have not done so.

Notation

58. The Court notes:

59. That pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) the Applicant applied to the Respondent consent authority for an amendment to DA No DA360/2024/1 by including and substituting (as the circumstances require) the amended plans and documents listed below:

| Item | Document | | 1 | Clause 4.6 written request for Floor Space Ratio prepared by BBC Consulting Planners dated 25 August 2025 | | 2 | Architectural Plans prepared by EM BE CE dated 25 August 2025 | | Drawing No. | Drawing Title | Revision | | DA-0000 | Cover Page | B | | DA-0001 | Notification Plan | B | | DA-0002 | Notification East & West Elevation | B | | DA-0003 | Notification South Elevation | B | | DA-0004 | Notification North Elevation | B | | DA-0100 | Site Analysis | B | | DA-0101 | Site Plan - Existing | B | | DA-0102 | Site Plan - Proposed | B | | DA-1000 | BH - L01 Demo Plan | B | | DA-1001 | BH - L02 Demo Plan | B | | DA-1002 | BH - Roof Demo Plan | B | | DA-1008 | H1 - L01 Demo Plan | B | | DA-1009 | H1 - L02 Demo Plan | B | | DA-1010 | H1 - L03 Demo Plan | B | | DA-1011 | H1 - L04 Demo Plan | B | | DA-1012 | H1 - Roof Demo Plan | B | | DA-1100 | BH - L01 Floor Plan | B | | DA-1101 | BH - L02 Floor Plan | B | | DA-1102 | BH - Roof Plan | B | | DA-1103 | H2 - L01 Floor Plan | B | | DA-1104 | H2 - L02 Floor Plan | B | | DA-1105 | H2 - L03 Floor Plan | B | | DA-1106 | H2 – L04 Floor Plan | C | | DA-1107 | H2 - L05 Floor Plan | B | | DA-1110 | H1 – L01 Floor Plan | C | | DA-1111 | H1 - L02 Floor Plan | B | | DA-1112 | H1 - L03 Floor Plan | B | | DA-1113 | H1 - L04 Floor Plan | B | | DA-1114 | H1 - Roof Plan | B | | DA-2000 | Elevation - East | B | | DA-2001 | Elevation - South - Upper | B | | DA-2002 | Elevation - South - Lower | B | | DA-2003 | Elevation - West | B | | DA-2004 | Elevation - North - Upper | B | | DA-2005 | Elevation – North – Lower | C | | DA-3000 | Section 01 – Upper (Stepped) | C | | DA-3001 | Section 01 - Lower (Stepped) | B | | DA-3002 | Section 02 | B | | DA-3003 | Section 03 | C | | DA-3004 | Section 04-05 | C | | DA-3005 | Section 06 | B | | DA-8100 | Shadow Diagrams - 21 June | B | | DA-8200 | GFA Diagrams - Existing 01 | B | | DA-8201 | GFA Diagrams - Existing 02 | B | | DA-8210 | GFA Diagrams - Proposed 01 | C | | DA-8211 | GFA Diagrams - Proposed 02 | C | | DA-8212 | GFA Diagrams - Proposed 03 | C | | DA-8301 | Excavation Diagram - Proposed | B | | DA-8302 | Excavation Diagram - Proposed | B | | DA-8401 | Landscape Diagram - Proposed | B | | DA-8402 | Landscape Diagram - Proposed | B | | SK250812-03 | H2 – L01 Floor Plan | | | SK250812-04 | H2 – L02 Floor Plan | | | SK250812-05 | H2 – L03 Floor Plan | | | SK250812-06 | H2 – L04 Floor Plan | | | SK250812-07 | H2 – L05 Floor Plan | | | SK250812-10 | H1 – L01 Floor Plan | | | SK250812-11 | H1 – L02 Floor Plan | | | 3 | Schedule of Amendments to the Architectural and Landscape Plans | | 4 | Amended Landscape Plans prepared by Dangar Barin Smith 26 August 2025, Revision K | | 5 | Heritage Impact Statement, Report Number 06, prepared by Urbis dated 14 July 2025 | | 6 | Arboricultural Impact Assessment Report, Version 5, prepared by Earthscape Horticultural Services dated 15 July 2025 | | 7 | Structural Engineering Letter and Drawings prepared by SDA Structures Pty Ltd dated 20 August 2025 | | 8 | Amended BASIX Certification A1762621_23 and 1374759S_06 dated 27. August 2025 and Stamped Plans | | 9 | NATHERS Certificate No. 0012148847-02, dated 27 August 2025 |

2. That pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) the Respondent consent authority has approved the application to amend the DA No DA360/2024/1.

Orders

59. The Court orders:

60. The Applicant’s written request pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 prepared by BBC Consulting Planners dated 25 August 2025, requesting a variation to cl 4.4E(3A) to permit the grant of development consent in contravention of the floor space ratio development standard is upheld

61. The appeal is upheld.

62. The Court grants development consent to DA No DA360/2024/1 for alterations to the heritage-listed dwelling house (including a new swimming pool in the year yard, altered internal access to the approved garage and car lift), and the construction of a second dwelling (in the form of an attached dual occupancy with connectivity to existing dwelling) on the lower part of the site as well as an indoor subterranean pool, site landscaping, drainage, and other associated works on Lot 100 in Deposited plan 1278603 known as 26-28 Wolseley Road, Point Piper, subject to Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (619 KB, pdf)

**********