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[2025] NSWLEC 1387
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-30
Targett C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rarkang Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1387
Hearing dates: Conciliation Conference 20 February, 12 March, 9 April, 19 May 2025
Date of orders: 30 May 2025
Decision date: 30 May 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application DA296/2023, as amended, for alterations and additions including a new basement level and first floor addition to the existing commercial (retail) building at 7 Walker Lane, Paddington NSW 2021, also known as 7-9 McLaughlan Place Paddington NSW 2021, subject to the conditions in Annexure A.
(3) The applicant is to pay the respondent’s costs thrown away by the amendment of the Development Application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,750 within 28 days of the date of these orders.
Catchwords: APPEAL – Development application - alterations and additions – existing use – agreement between the parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.15
Land and Environment Court Act 1979, ss 17, 34
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.3, 4.6
Woollahra Local Environmental Plan 2014, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.6
Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
Texts Cited: Woollahra Community Participation Plan 2023
Woollahra Development Control Plan 2015
Category: Principal judgment
Parties: Rarkang Pty Ltd (First Applicant)
Studio McQualter Pty Ltd (Second 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): 2024/382045
Publication restriction: No
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application No. DA296/2023 (Development Application) seeking consent for alterations and additions to an existing commercial (retail) premises including a new basement level and first floor addition, on land identified as Lot 1 in Deposited Plan 66505 known as 7-9 McLaughlan Place, Paddington and also known as 7 Walker Lane, Paddington (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Development Application was lodged with the respondent 23 August 2023.
The Development Application was refused by the Woollahra Local Planning Panel (Panel) on 3 October 2024.
On 15 October 2024, the proceedings were commenced against the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 20 February 2025 and adjourned a number of times.
During the conciliation process, the applicant prepared without prejudice amended plans and documentation which were then notified between 19 March and 2 April 2025 in accordance with the Woollahra Community Participation Plan (March Proposal). The March Proposal included:
lowering the roof by 300mm;
setting back the first floor eastern wall (to Elfred Street properties) by 1m; and
extending trading hours.
Following discussions post re-notification and having regard to resident objections to the March Proposal (discussed further at [15]), the applicant prepared further amended plans and documentation (May Amendments). The May Amendments relevantly include:
further lowering the roof by 380mm (being a total reduction of 680mm from that proposed in the Development Application);
lowering the first floor internal height to 2.2m along the eastern and western edges through amending the roof pitch, roof construction buildups and proposed gutters;
reducing the ground floor internal heights by 600mm (previously 3.7m to 3.1m);
deleting the proposed first floor windows on the eastern wall (to Elfred Street properties) and installation of a skylight along the length of the proposed first floor; and
deleting the extended trading hours proposed in the March Proposal.
Following the May Amendments, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement and accompanying documentation was provided to the Court on 13 May 2025 following the applicant amending the Development Application in accordance with the May Amendments with the respondent’s agreement (Amended Development Application).
The decision agreed upon is the grant of consent to the Amended Development Application, subject to conditions of consent.
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.
Following the provision of further information, judgment was reserved on 19 May 2025.
The Development Application was notified from 13 to 28 September 2023. 32 submissions objecting to the proposal were received in response to the notification (comprising objections from 27 objectors, with multiple submissions received from some objectors). Concerns from residents included:
view loss;
reduced solar access and amenity impacts;
bulk and scale and sense of enclosure;
incompatibility with residential area;
excavation impacts;
increased traffic and parking issues;
acoustic and visual impact;
light spill/pollution; and
heritage impacts.
Six objectors addressed the Court at the on-site view associated with the conciliation conference on 20 February 2025. The Court also attended five properties at the residents’ request.
The March Proposal was re-notified from 19 March to 2 April 2025. 56 submissions were received in response to this notification, objecting to the proposed amendments to the Development Application. The objections primarily related to the same general issues as summarised at [13] but also included objections to the proposed extended trading hours.
Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Amended Development Application as the Subject Land is mapped as being within the coastal zone for the purposes of s 2.3 of the RH SEPP.
The parties submit and I accept that “the proposal will not have any significant adverse environmental impact upon the harbour coastal locality and [is] therefore satisfactory with regard to the relevant provisions of the planning instrument” as per section 10.1 of the Local Planning Panel Development Application Assessment Report dated 3 October 2024 (Assessment Report).
Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
The Development Application was accompanied by a Preliminary Site Investigation prepared by Sydney Environmental Group Pty Ltd dated 11 July 2023 (PSI). The PSI identified one area of potential environmental concern, being potential historical uncontrolled filling that may be identified during excavation. The PSI relevantly concludes (at p 2):
One (1) area of potential environmental concern (AECs) has been identified for the site and will presumably be assessed during bulk excavation works proposed;
Based on the assessments undertaken as part of this investigation, SE has concluded that the site is generally suitable for the proposed land use.
In relation to the suitability of the Subject Land for the proposed development post construction/remediation work, the PSI relevantly provides that (at p 16):
“SE notes that the proposed development will comprise concrete hardstand across the entire site footprint, with minimal to no access to underlying soil materials following redevelopment works”; and
“The risk of direct contact, ingestion or inhalation of soil contaminated by future site end users will not be possible due to the presence of a hardstand barrier. SE understand that the proposed basement excavation works would remove any direct contact human health risks. As such, no further investigation is considered warranted”.
Having regard to the PSI and Conditions A3, B3, F2 and F13, I accept the parties’ submission that the requirements of s 4.6 of the RH SEPP have been considered and the Subject Land is, or will be, suitable for the purpose for which the development is proposed to carried out, and the land will be remediated before the land is used for that purpose.
Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located within the Sydney Harbour Catchment.
Part 6.2 of the BC SEPP relevantly precludes the grant of consent to development on land in a regulated catchment unless the consent authority has considered, and is satisfied of, specified matters relating to water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.
The parties agree, and I accept that:
For the purposes of s 6.6 of the BC SEPP, the Subject Land is fully covered and thus any works to the Subject Land will not:
(a) effect the quality of water entering a natural waterbody and will be neutral or beneficial; and (b) will not impact on water flow in a natural waterbody.
(a) keeps to a minimum any direct, direct or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (b) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (c) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (d) minimises any adverse impact on wetlands.
For the purposes of s 6.8 of the BC SEPP, the proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems.
For the purposes of s 6.9 of the BC SEPP, the proposed development will not relevantly affect public access to and from natural waterbodies.
For the purposes of s 6.10 of the BC SEPP, the proposed development is not likely to have an adverse environmental impact on any adjacent local government areas.
For the purposes of s 6.11 of the BC SEPP, the proposed development is not located on land within 100m of a natural waterbody in a regulated catchment.
The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.
The Subject Land is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). I confirm that I have had regard to the objectives of the R2 zone. Development for the purpose of commercial retail uses are prohibited in the R2 zone. However, the parties agree that the Subject Land benefits from existing use rights and the Amended Development Application will continue the existing non-residential use of the building.
In this regard, the parties agree that cl 6.6 of the WLEP is relevant in this matter.
Clause 6.6 of the WLEP relating to “use of existing non-residential buildings in residential zones” relevantly provides at subclause (3) that development consent must not be granted to development to which this clause applies for the purposes of business premises, unless:
(a) the whole or part of the development has a history of a lawfully commenced non-residential use, whether or not that use has been discontinued, abandoned or interrupted, and (b) the whole or part of the development was originally lawfully carried out with a non-residential design or was lawfully altered or adopted to a non-residential design, and (c) the consent authority is satisfied that the development –
(i) will not adversely affect the enjoyment by an occupier of the land adjoining or in the neighbourhood of the land on which the development is situated, and (ii) if located in a heritage conservation area – will not adversely affect the heritage significance of the building in which, or the land on which, the development is situated, or the heritage conservation area.
The parties agree, and I accept that the requirements in cl 6.6(3)(a) and (b) are satisfied, having regard to the:
Statement of Environment Effects prepared by GSA Planning dated August 2023 (SEE) which relevantly provides that:
“… the development was originally and lawfully carried out as a non-residential design, being a warehouse, then photographic studio and finally an art gallery… Approved in 2012, DA No.508/2011 relied on “existing use rights” to convert this art gallery into a showroom and fashion office.”
Assessment Report (see p 289) which relevantly provides that:
“…the whole of the Subject Land has a history of a lawfully commenced non-residential use noting that this has occurred within a building that is of a non-residential design. DA508/2011/1 was approved on 24 January 2012 for internal alterations and change of use to a showroom and fashion office.”
“This has been achieved by minimising the bulk and scale, providing for privacy screening and other privacy measures, ensuring acoustic issues are managed by acoustic attenuation and a POM for noise emissions from the premises and plant and equipment as well as managing the use of the premises and its hours of operation. Additionally, light spill is managed by the POM.”
In relation to cl 6.6(3)(c)(ii) of the WLEP, the parties agree, and I accept, that:
the Subject Land is located within the Paddington Heritage Conservation Area (HCA); and
the Amended Development Application will not adversely affect the heritage significance of the heritage conservation area in which the development is situated, having regard to the findings of the Heritage Impact Assessment Report prepared by Zolton Kovacs Architect dated May 2023 (Heritage Report) and Assessment Report (p 290) which relevantly provides that:
“… Council’s Heritage Officer has undertaken an assessment of the proposal and deems it to be satisfactory from a heritage perspective noting it is not considered to alter the heritage significance of the building or the land on which it is located upon, nor would it have any adverse impacts upon the conservation area.”
The parties agree, and I accept that, the amendments to the design comprising the Amended Development Application “retain large amounts of the original fabric remaining on the Site and it is agreed the Heritage Report adequately considers those important heritage elements of the existing building form and the Final Plans respect those items” (see the Jurisdictional Statement, p 4).
I am therefore satisfied that development consent can be granted to the Amended Development Application having regard to the requirements of cl 6.6 of the WLEP.
Pursuant to cl 4.3 of the WLEP relating to height of buildings, the maximum height of buildings on the Subject Land is limited to 9.5m. The parties agree that the Amended Development Application complies with this development standard.
Pursuant to cl 4.4 of the WLEP relating to floor space ratio (FSR), the Subject Land is not mapped as having a maximum FSR under the WLEP.
The parties agree that cl 5.10 of the WLEP relating to heritage applies to the Subject Land as it is located within the Paddington HCA. Clause 5.10(4) relevantly requires the consent authority to consider the effect of the proposed development on the heritage significance of the area concerned. I confirm that I have considered the Heritage Report prepared as part of the proposal and am satisfied that the Amended Development Application can be approved having regard to the heritage considerations in cl 5.10 of the WLEP. To this end, I reiterate the findings at [33] and [34] above.
Pursuant to cl 6.1 of the WLEP relating to acid sulfate soils, the parties agree that the Subject Land is located within a Class 5 area and is not likely to lower the water table below 1m AHD on any land within 500m of any adjacent Class 1, 2, 3 or 4 land. Accordingly, an acid sulfate soils management plan is not required.
Pursuant to cl 6.2(3) of the WLEP relating to earthworks, in deciding whether to grant development consent for earthworks, the consent authority must consider specified matters. The Amended Development Application includes a Geotechnical and Hydrological report prepared by JK Geotechnics dated 7 August 2023 (Geotech Report). Having regard to the Geotech Report, the Assessment Report (see pp 287-288) and the Agreed Conditions, I confirm that I have considered the matters listed in cl 6.2(3) of the WLEP.
The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1) of the EPA Act.
Matters relevant to s 4.15(1)(a) have been generally considered above and in the SEE.
In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see p 9 of the Jurisdictional Statement).
In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see p 9 of the Jurisdictional Statement).
In relation to s 4.15(d), as noted at [13]-[15], there was significant community opposition to the Development Application as lodged and the March Proposal that was re-notified. The parties agree that the Amended Development Application addresses the resident objections and concerns, particularly in respect of concerns with respect to overshadowing, view loss, bulk and scale, and privacy. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.
In relation to s 4.15(1)(e), the parties agree that consideration has been given to the public interest (see p 9 of the Jurisdictional Statement).
In determining the Amended Development Application, I confirm that I have taken into consideration such of the matters that are of relevance to the proposal listed in s 4.15(1) of the EPA Act.
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.
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.
The Court notes that the respondent, as the relevant consent authority, has approved, under section 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of DA296/2023 to incorporate the documents listed below:
| Reference | Description | Author | Date | | DA.000 (Rev J) | Covering Page, Material Board & Site Location | Studio McQualter | 23/4/25 | | DA.002 (Rev J) | Proposed Site Plan & SWMM | Studio McQualter | 23/4/25 | | DA.010 (Rev J) | Existing & Demolition Plan Ground Floor | Studio McQualter | 23/4/25 | | DA.011 (Rev J) | Existing & Demolition Plan First Floor | Studio McQualter | 23/4/25 | | DA.012 (Rev J) | Existing & Demolition Plan Roof | Studio McQualter | 23/4/25 | | DA.017 (Rev J) | Existing & Demolition Plan Section Short | Studio McQualter | 23/4/25 | | DA.018 (Rev J) | Existing & Demolition Plan Section Long | Studio McQualter | 23/4/25 | | DA.100 (Rev J) | Proposed Plan Basement | Studio McQualter | 23/4/25 | | DA.101 (Rev J) | Proposed Plan Ground Floor | Studio McQualter | 23/4/25 | | DA.102 (Rev J) | Proposed Plan First Floor | Studio McQualter | 23/4/25 | | DA.103 (Rev J) | Proposed Plan Roof Plan | Studio McQualter | 23/4/25 | | DA.200 (Rev J) | Proposed Section Short | Studio McQualter | 23/4/25 | | DA.201 (Rev J) | Proposed Section Long | Studio McQualter | 23/4/25 | | DA.300 (Rev J) | Proposed Elevations North | Studio McQualter | 23/4/25 | | DA.301 (Rev J) | Proposed Elevation South | Studio McQualter | 23/4/25 | | DA.302 (Rev J) | Proposed Elevation East | Studio McQualter | 23/4/25 | | DA.303 (Rev J) | Proposed Elevation West | Studio McQualter | 23/4/25 | | JOB NO. 21506 V4.0 | Plan of Management | GSA Planning | 15 April 2025 |
The Court orders that:
The appeal is upheld.
Development consent is granted to development application DA296/2023, as amended, for alterations and additions including a new Basement level and first floor addition to the existing commercial (retail) building at 7 Walker Lane Paddington NSW 2021 also known as 7 – 9 McLaughlan Place Paddington NSW 2021, subject to conditions at Annexure A.
The applicant is to pay the respondent’s costs thrown away by the amendment of the development application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,750 within 28 days of the date of these orders.
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Rarkang Pty Ltd
Woollahra Municipal Council [2025] NSWLEC 1387
(2010) 177 LGERA 312