Renton v Woollahra Municipal Council

Parties: Oliver Renton (First Applicant)
Claire Heritage (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
D Raithby (Solicitor) (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Benchmark Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/104108

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This class 1 appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW), (EPA Act) following the approval of modification application DA2023/1/3 by Woollahra Municipal Council with conditions of consent that were contested by the Applicants in this matter.

2. The consent modified development consent DA2023/1/1 granted by the Council on 7 September 2023 for alterations and additions to a dwelling at 64 Sutherland Street Paddington (the Original Consent).

3. The Applicants filed an appeal against the imposition of certain conditions including Condition A.8, C.1(e), C.1(f), C.1(g) and C.1(h).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW), (LEC Act) between the parties, on 26 September 2025. I presided over the conciliation conference, prior to which the parties agreed to certain amendments that would resolve the contentions.

5. A signed agreement was submitted to the Court on 17 September 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

8. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

Environmental Planning and Assessment Act 1979

9. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

10. The Original Consent approved alterations and additions to an existing dwelling house including proposed changes to window openings, balustrades and a rear extension.

11. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. The scope of the proposed modifications are, to my understanding, a change in the extent of demolition to substantially comply with Condition A.8 with consequential changes to Condition C.1. As such, the amended plans and other documents largely result in development that is consistent with development the subject of the Original Consent.

12. As no submissions resulted from the notification of the Modification Application, the requirement to consider such submissions at s 4.55(2)(d) of the EPA Act has no work to do in the circumstances of this matter.

Environmental Planning and Assessment Regulation 2021

13. The parties agree that the relevant provisions of the EPA Regulation have been considered and are satisfactorily addressed.

14. The Modification Application has been made by the owners of the site, who provide written consent.

15. The modification applications are accompanied by a BASIX Certificate (Cert No A478367_02 dated 28 August 2025) prepared by Derek Raithby Architecture in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), and consistent with the provisions at s 100(3) of the EPA Regulation.

Woollahra Local Environmental Plan 2014

16. I have also taken into consideration such of the matters referred to in s 4.15(1) of the EPA act, are of relevance to the development the subject of the application.

17. The site is located in an area designated R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP), in which the proposed development is permitted with consent, where consistent with the following objectives for development in the R2 zone:

• To provide for the housing needs of the community within a low density residential environment.

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

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

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

• To ensure development conserves and enhances tree canopy cover.

18. The site is within the Paddington Heritage Conservation Area (Paddington HCA) at Sch 5 of the WLEP and the parties agree, and I accept, that the proposal as amended will have an acceptable impact on the Paddington HCA, in accordance with cl 5.10 of the WLEP.

19. The site is located within an area designated on the relevant map at cl 6.1(2) of the WLEP as Class 5 Acid Sulfate Soils. However, as the works do not propose to disturb more than 1 tonne of soil so consent is not required under cl 6.1.

Conclusion

20. 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.

21. 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.

22. The Court notes that:

23. Woollahra Municipal Council, as the relevant consent authority, approves under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending Modification Application No. DA2023/1/3 to include drawing ‘A04 Lower Ground Floor Plan, revision 12, dated September 2025’.

24. The Amended plan noted above was filed with the Court on 17 September 2025.

Orders

23. The Court orders that:

24. The appeal is upheld;

25. The Applicant is granted leave to amend Modification Application DA2023/1/3 to include ‘A04 Lower Ground Floor Plan, revision 12, dated September 2025’.

26. Development consent DA2023/1/3 for Alterations and Additions at 64 Sutherland Street Paddington, is modified subject to the conditions set out in Annexure ‘A’.

27. Development Consent No. DA1/2023/3 as modified by the Court is Annexure B.

T Horton

Commissioner of the Court

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Annexure A (173 KB, pdf)

Annexure B (550 KB, pdf)