Salisbury Road Development Pty Ltd v Woollahra Municipal Council

Cases Cited: MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1213

Category: Principal judgment

Parties: Salisbury Road Development Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/143910

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) to DA237/2023/1 at 43 Salisbury Road, Rose Bay. The modification application seeks internal modifications throughout the building, external changes to the facades, some balconies, various windows and changes to the landscaped areas.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 11 June 2025. I presided over the conciliation conference.

3. The Respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA-237/2023/3 in accordance with the documents listed below (amended application):

| Reference | Description | Author/Drawn | Date(s) | | 1789484M | BASIX Certificate | NSW Department of Planning and Environment | 28 March 2025 | | DA 1002 (Rev.G) | Architectural Drawings | MHN Design Union | Rev G 11 June 2025 | | DA 2000 (Rev.G) | | DA 2001 (Rev.G) | | DA 2002 (Rev.G) | | DA 2003 (Rev.G) | | DA 2004 (Rev.G) | | DA 3000 (Rev.G) | | DA 3001 (Rev.G) | | DA 3002 (Rev.G) | | DA 3100 (Rev.G) | | DA 3101 (Rev.G) |

4. 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 granting the modification application and modifying the development consent. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. The final agreement was filed to the Court 3 July 2025.

6. 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

7. 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 the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

8. I am satisfied that owners consent accompanied the modification application, who is the Applicant (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 to the apartments, car parking area, landscaping and façade are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by GSA Planning dated 7 April 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 28 May 2025 and 12 June 2025. One submission was received raising concerns in relation to privacy, visual intrusion and exceedance of the floor space ratio (FSR) and height controls. I accept the parties’ agreement in the jurisdictional statement that the concerns have been considered by the proposed modification application and the concerns do not warrant further modifications or a refusal to accept the parties’ agreement.

11. The original development application required General Terms of Agreement (GTA) from WaterNSW pursuant to s 90 of the Water Management Act 2000 (NSW). The amended application received GTA’s on 25 June 2025 and these form part of the conditions of consent (s 4.55(2)(c) of the EPA Act).

12. The amended application is accompanied by an amended BASIX certificate (1789484M) 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 Class 1 appeal and supported by the jurisdictional statement. All preconditions remain unchanged from the original consent and previous modification application, except for cl 4.4 FSR of the Woollahra Local Environmental Plan 2014 (WLEP). The original development had an FSR of 0.65:1. This amended application seeks an increase to 0.79:1. A written request to vary FSR is not required for a modification application. I accept the parties’ agreement that the increase in FSR is acceptable as the variation is consistent with the objectives of cl 4.4.

14. 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: MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1213 (s 4.55(3) of the EPA Act).

Conclusion

15. 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.

16. 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.

17. 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

18. The Court orders:

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

20. Development consent DA237/2023/1 granted by the Land and Environment Court on 24 April 2024 as modified by the Court on 24 September 2024 is modified in the terms in Annexure A.

21. Development consent DA237/2023/1 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

Annexure A (164 KB, pdf)

Annexure B (744 KB, pdf)

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