Salouris v Council of the Municipality of Woollahra

Category: Principal judgment

Parties: Bill Salouris (First Applicant)
Courtney Salouris (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
G McKee (Solicitor)(Applicants)
R O’Gorman-Hughes (Respondent)
Solicitors:
McKees Legal Solutions (Applicants)
Woollahra Council (Respondent)

File Number(s): 2025/215419

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the Applicants against the refusal of DA540/2024/1 (Development Application), lodged with the Woollahra Council (the Respondent), on 13 January 2025. The respondent issued a notice of refusal on 12 May 2025.

2. The Development Application seeks development consent for demolition of the existing house and pool and the construction of a new dwelling house with basement level and pool. The proposed development is to take place at 24 Captain Pipers Road, Vaucluse, NSW 2030. The proposed development is on land legally described as Lot 5 in DP13230 (Site).

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 29 October 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent 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). In reaching that state of satisfaction, I note the following:

8. Pursuant to the Woollahra Local Environmental Plan 2014 (WLEP), the subject site is zoned R2 Low Density Residential. The proposed “dwelling house” is permissible in this zone. Regard has been given to the R2 zone objectives in determining the application.

9. Pursuant to cl 4.3 of the WLEP, the maximum building height permissible for the site is 9.5m as annotated on the height of buildings map. The proposal has a maximum height of 9.839m, being a 3.99% non-compliance.

10. The Development Application, as amended, is supported by a cl 4.6 written request prepared by Minto Planning Services, dated 15 October 2025. The written request provides a detailed assessment of cl 4.6 of the WLEP and its objectives, and whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case. The written request concludes that:

“…based upon the content of this submission that a variation of the height of buildings requirement of Clause 4.3 of the Woollahra LEP 2014 is appropriate in this instance.”

4. The parties are satisfied that the written cl 4.6 request adequately addresses the following matters that are required to be demonstrated under cl 4.6 of WLEP that:

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and (b) there are sufficient environmental planning grounds to justify contravening the development standard. (c) The parties have demonstrated that the required documentation has been provided and the relevant considerations have been undertaken.

5. Pursuant to cl 4.4 of the WLEP – Floor space ratio, the maximum permissible floor area of 0.5:1, being 218m², is applicable to the development. The proposal, as amended, provides for a compliant total floor area of 217.7m². I am satisfied that the requirements of this clause have been met.
6. Clause 5.10 of the WLEP requires consideration of heritage matters. The site does not contain a heritage item, is not within a heritage conservation area, or in the vicinity of a heritage item
7. Pursuant to cl 6.1 of the WLEP – Acid sulfate soils, the consent authority is required to consider any potential acid sulfate soils works that might disturb, expose or drain acid sulfate soils and cause environmental damage. The parties agree that the Site is located within a Class 5 area as specified in the WLEP Acid Sulfate Soils Map. The parties agree, and I am satisfied, that the proposal meets the requirements of cl 6.1 of the WLEP 2014 as development consent is not required pursuant to this clause.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The site is located within the Sydney Harbour Catchment pursuant to ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The parties have undertaken the required assessments in respect to the proposed development including preparing the following documentation:

(a) Stormwater Management Plans prepared by NB Consulting Engineers Revision A dated 16 December 2024. (b) Geotechnical and Hydrogeological Investigation Report prepared by Challis Capital Partners dated 11 November 2024. (c) Landscape Plan prepared by Vision Dynamics Pty Ltd, Revision E, dated 25 September 2025.

2. These reports have considered the various requirements in ss 6.6 – 6.14 of the BC SEPP which include, but are not limited to, assessing impacts on water quality, aquatic reserves, migratory animals, and vegetation. The proposal does not propose tree removal nor is the site flood prone. The parties agree that the assessments demonstrate that the proposed development is satisfactory. I agree that the required matters have been considered.

State Environmental Planning Policy (Sustainable Buildings) 2022

1. The Development Application is accompanied by BASIX Certificate No. 1773783S_03 issued by Max Brightwell, dated 10 October 2025. The parties are satisfied, as am I, that the requirements in s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. As required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, consideration has been given to whether the site is contaminated. The parties agree that the Site has been used for residential purposes for a number of years and is therefore unlikely to be contaminated. The proposed use of the land is to remain residential. The parties agree, and I am satisfied, that the required considerations have been undertaken.

2. The proposal was notified during February 2025. No submissions were received.

3. 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’ agreement.

4. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

5. The Court notes that:

6. Woollahra Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Development Application DA540/2024/1 and supporting documents, the subject of these proceedings, in accordance with the plans and documents listed below:

| Reference/DWG No | Title/Description | | Date | Prepared By | | Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans: | | DA-01 | Site Plan & Front Setbacks | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-02 | Basement Floor Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-03 | Ground Floor Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-04 | First Floor Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-05 | Roof Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-06 | North Elevation | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-07 | South Elevation | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-08 | East Elevation | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-09 | West Elevation | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-10 | Section | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-11 | Section | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-12 | Construction Management Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-13 | Materials and Finishes | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-14 | Photomontage | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-15 | Shadow Diagrams | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-16 | Building Envelope and Height Plane Views | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-17 | Calculations | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-18 | Views from the Sun Existing | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-19 | Views from the Sun Proposed | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-20 | Demolition Plan | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | DA-21 | Turning Circles | C | Fortey & Grant Architecture Pty Ltd | 25/09/2025 | | Landscape Plans: | | DA 1-1 | Landscape Concept Plan | E | Vision Dynamics | 25/09/2025 | | Report: | | Name | Prepared by | Date | | Clause 4.6 Exception to Development Standards Variation to Clause 4.3 Height of Buildings | Minto Planning Services | 15/10/2025 | | BASIX Certificate 1773783S_03 | Max Brightwell | 10/10/2025 |

Orders

12. The Court Orders that:

13. The appeal is upheld.

14. Development Application DA540/2024/1, for demolition of the existing house and pool and the construction of a new dwelling house with basement level and pool in relation to Lot 5 DP13230, being 24 Captain Pipers Road, Vaucluse, is determined by the grant of consent subject to the conditions set out in Annexure A.

S Harding

Acting Commissioner of the Court

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Annexure A (456 KB, pdf)