Simpson v Woollahra Municipal Council

Parties: Allan Geoffrey Simpson (First Applicant)
Beverly Anne Simpson (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
A Boskovitz (Applicants)
S Patterson (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/98459

Publication restriction: Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Woollahra Municipal Council’s refusal of development application DA432/2024 which sought consent for the demolition of existing dwelling and construction of new dwelling.

2. The background facts and the relevant statutory framework is set out in the Council’s Statement of Facts and Contentions (SOFC) dated 16 April 2025.

3. In accordance with the Court’s practise a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) was arranged between the parties and held on 7 August 2025. I presided over the conciliation conference. At the conference the Applicant provided amended architectural plans that were responsive to the Council’s contentions and the concerns expressed by local objectors with respect to privacy and overlooking, bulk and scale and heritage conservation. (“Final Plans”).

4. The Applicant also provided other documents including:

5. Amended landscape plans prepared by Studio U.C dated 21 July 2025 (the ‘Landscape Plans’);

6. Amended BASIX Certificate 1769238S_03 prepared by Certified Energy dated 18 August 2025 (the ‘Basix Certificate’); and

7. Updated stormwater plans prepared by JHA dated 13 August 2028 (the ‘SW Plans’)

8. The Final Plans result in modifications to the proposed new structure including:

9. setback of the building from the side boundary;

10. provision of adequate landscaping and private open space;

11. changes to roof form and dormers to manage the heritage concerns of the Council’s experts; and

12. privacy mitigation measures.

13. The Council is now satisfied with the amended application and has reached an agreement with the applicant as to the terms of a decision in the proceedings that would be acceptable. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the DA, as amended and subject to the agreed conditions in Annexure A.

14. 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. The pre-conditions that must be satisfied before the Court can exercise its functions are addressed in a written submission prepared by the parties.

15. Based on the submission of the parties and the evidence before me I am satisfied that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons.

Woollahra Local Environment Plan 2014 (WLEP)

9. The development is compliant with the relevant provisions of the Woollahra Local Environment Plan 2014 (WLEP) and the Council is satisfied that the development, as amended by the Final Plans and Landscape Plans meet the objectives of the R2 Zone.

10. Relevantly, the Final Plans do not result in any works which will exceed the permissible height control of 9.5m as provided for at clause 4.3 of the WLEP and in the maps attached to the WLEP. The maximum height proposed is 7.78m.

11. While the Site is not a heritage item or a contributory item it is located within the Woollahra Heritage Conservation Area (the ‘HCA’).As such, cl 5.10 of the WLEP ‘heritage’ must be considered in the assessment of this application and the clause is addressed in the Heritage Impact Assessment report prepared by Weir Phillips dated October 2024 which accompanied the DA (the ‘Heritage Report’).

12. The Heritage report has assessed that the demolition of the existing dwelling, as proposed, is acceptable because the building is a detracting element in a streetscape which contains several building forms which are listed as contributory. The heritage experts have also expressed their support of the Final Plans in particular the amended roof form with the articulated style of dormer and the solid to void ratio on the front façade all of which allow for a contemporary new infill development that takes cues from surrounding contributory items and complements the range of styles in the streetscape on Forth Street and, to a lesser extent, in Pickering Lane at the rear.

13. As the Council has accepted that heritage evidence, I am also satisfied that cl 5.10 has been considered and the development is acceptable.

14. The Site is located within a Class 5 Area as specified in the Council’s Acid Sulfate Soils Map under 6.1 of the WLEP. The geotechnical Report prepared by Geo-Environmental Engineering dated 14 October 2024 (the ‘Geotech Report’) has assessed that the development is unlikely to have any acid sulfate affectation.

15. The Council accepts that expert evidence and I am satisfied on that basis in respect of acid sulfate soils.

16. Clause 6.2(3) of WLEP has been considered as part of the Geotech Report. The parties are agreed that earthworks issues have been adequately addressed and I accept that to be the fact.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP)

Chapter 2 – Coastal Management

17. The Site is within the coastal management area mapped. However, the parties agree, and I accept that the Court can be satisfied that there will be no significant impact upon the harbour coastal locality by the proposed development.

Chapter 4 – Contamination

18. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the Land is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

19. In the present case, the use of the Land is proposed to remain residential. Accordingly, s 4.6(2) of the Resilience & Hazards SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of the Land is not required. This position is agreed.

20. The issue of the longstanding use of the Site is outlined in the Heritage Report.

21. Accordingly, in relation to s 4.6 of the Resilience & Hazards SEPP the Court can be satisfied that consideration of this matter can result in consent being granted.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

Chapter 6 – Water Catchment

22. The Site is located within the Sydney Harbour Catchment in accordance with the maps associated with the BC SEPP, but it is located outside the Foreshores and Waterways Area identified in the relevant map (see s 6.28 of the BC SEPP).

23. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a “regulated catchment” as defined in Schedule 6 – Dictionary to Chapter 6 of the BC SEPP.

24. Part 6.2 of the BC SEPP precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

25. water quality and quantity;

26. aquatic ecology;

27. flooding;

28. recreation and public access; and

29. total catchment management.

30. The Applicant has prepared the SW Plans to reflect the changes to the Proposal resulting from the Final Plans and Landscape Plans.

31. The parties agree that the Court can be satisfied that the SW Plans allow the Court to be satisfied that:

(a) the effect on 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 will be minimised (s 6.6(2) of the BC SEPP).

1. The Proposed Development;

(a) keeps to a minimum any direct, indirect 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 (s 6.7 of the BC SEPP).

2. the Proposed Development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8 of the BC SEPP);

3. the Proposed Development does not affect public access to and from natural waterbodies (s 6.9 of the BC SEPP);

4. the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10 of the BC SEPP); and

5. the Proposed Development is not located on land within 100m of a natural waterbody in a regulated catchment (s 6.11 of the BC SEPP).

6. The parties agree and I accept that the Court can be satisfied that this Chapter has been adequately dealt with.

Conditions of consent

28. The proposed agreed conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EP&A Act and relevant legal principles.

Conclusion and orders

29. As the parties’ decision is within power, I now dispose of the proceedings in accordance with that decision.

30. In forming that view, I am not required to make, and have not made, any 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.

31. The Court notes that:

32. Woollahra Municipal Council, as the relevant consent authority, has approved, under section 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of DA432/2024/1to incorporate the documents listed below:

| Reference | Description | Author | Date | | Architectural Plans | Pohio Adams Architects | 13/08/2025 (Revision G) | | DA.0.00 | Cover Sheet | | DA.0.10 | Site Survey Plan | | DA.0.12 | Proposed Site Plan | | DA.0.13 | Proposed Site Plan Front Setbacks | | DA 1.01 | Demolition Ground Floor Plan | | DA 1.02 | Demolition First Floor Plan | | DA.1.10 | Proposed Ground Floor Plan | | DA.1.11 | Proposed First Floor Plan | | DA.1.12 | Proposed Garage Plan | | DA.1.13 | Proposed Swept Path Diagram Entry | | DA.1.14 | Proposed Swept Path Diagram Entry | | DA.1.15 | Proposed Swept Path Diagram Exit | | DA.1.16 | Proposed Swept Path Diagram Exit | | DA.2.10 | Proposed Elevation | | DA.2.11 | Proposed Elevation | | DA 2.12 | Proposed Elevation | | DA.2.13 | Proposed Elevation | | DA 2.21 | External Materials And Colours | | DA.3.11 | Proposed Section | | DA.3.12 | Proposed Section | | DA.4.00 | Landscape Deep Soil Area | | DA.4.10 | Proposed Private Open Space |

| Landscape Plans | Studio U.C | 21/07/2025 (Revision C) | | Overall Site Plan | | | | Ground Level Landscape Plan | | | | First Level Landscape Plan | | | | Landscape Area Calc. | | | | BASIX Certificate | NSW Department of Planning, Housing and Environment | 18/08/2025 | | | Stormwater Management Plans | JHA | 13/08/2025 | |

(the ‘Amended Development Application’)

(b) The Amended Development Application was filed with the Court on 4 September 2025.

32. The Court orders that:

33. The appeal is upheld.

34. Development consent is granted to development application DA432/2024/1, as amended, for demolition of the existing dwelling and construction of a new dwelling at 39 Forth Street, Woollahra NSW 2025, subject to conditions at Annexure A.

S Dixon

Senior Commissioner of the Court

98459.25 Annexure A

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Amendments

19 September 2025

Typographical amendment.