Smouha v Woollahra Municipal Council

Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category: Principal judgment

Parties: Charles Smouha (First Applicant)
Jessica Smouha (Second Applicant)
Laura Cook (Third Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
S Berveling (Applicant)
N Hammond (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/264503

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 70/2025 for substantial alterations and additions to the existing dwelling (the proposal), at 50A Ocean Street, Woollahra NSW 2025 (Lot 26 DP 225417) (the site), by Woollahra Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 20 November 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Reference/DWG No/Revision | Title/Description | Author | Date | | DA.10 (B) | Ground Floor Plan (Demo) | Laura Cook | 24.10.25 | | DA.11 (B) | Roof Plan (Demo) | Laura Cook | 24.10.25 | | DA.12 (B) | Ground Floor Plan (Prop) | Laura Cook | 24.10.25 | | DA.13 (B) | First Floor Plan (Prop) | Laura Cook | 24.10.25 | | DA.15 (B) | Roof Plan (Prop) | Laura Cook | 24.10.25 | | DA.16 (B) | Elevation (Prop) | Laura Cook | 24.10.25 | | DA.17 (B) | Elevation (Prop) | Laura Cook | 24.10.25 | | DA.18 (B) | Elevation (Prop) | Laura Cook | 24.10.25 | | DA.19 (B) | Elevation (Prop) | Laura Cook | 24.10.25 | | DA.20 (B) | Section C (Prop) | Laura Cook | 24.10.25 | | DA.21 (B) | Section D (Prop) | Laura Cook | 24.10.25 | | DA.24 (B) | Finishes and Materials Sched | Laura Cook | 24.10.25 | | A1375282_02 | BASIX Certificate | NSW Department of Planning and Environment | 22 October 2025 | | Other Documents | | Name | Prepared by | Date | | Arboricultural Impact Assessment Report | Jacksons Nature Works | 29 October 2025 | | Embodied Emissions Report | Positive Eco | 18 November 2025 | | Heritage Impact Statement | Weir Phillips | November 2025 | | Clause 4.6 for Floor Space Ratio | GSA Planning | October 2025 |

5. An agreed condition of consent at D1 modifies the building envelope so that Bedroom 3 has an indent of 0.5 x 2.3m to allow for the trimming of Tree 10, a jacaranda, to be one limb only above a Y junction, in order to retain the existing canopy of the tree.

Pre-conditions to the grant of consent

6. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been satisfactorily addressed by the Stage 1 Preliminary Site Investigation prepared by White Geotechnical Group and dated 9 April 2025.

7. The site is zoned R3 Medium Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

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

• To provide a variety of housing types within a medium density residential environment.

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

• 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.

8. The site is within the Woollahra Heritage Conservation Area (Woollahra HCA). Pursuant to cl 5.10(4) of LEP 2014, the consent authority must consider the effect of the proposal on the heritage significance of the Woollahra HCA. I accept the conclusions of the Heritage Impact Assessment prepared by Weir Phillips dated September 2023 (updated November 2025) that the (amended) proposal is acceptable and will not detrimentally impact on the collective significance of the Woollahra HCA.

Contravention of the floor space ratio development standard

9. The proposal has a floor space ratio (FSR) of 1.1:1. The FSR development standard for the site is 0.65:1. On 3 October 2025, the Council obtained Gateway determination for a Planning Proposal PP-2025-1038 (PP) for “FSR Housekeeping” amendments to LEP 2014. The PP removes properties zoned R3 Medium Density Residential within heritage conservation areas including the Woollahra HCA. As the amending LEP has not been made, the application requires a written request to contravene the FSR development standard for the site under LEP 2014.

10. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by GSA Planning and dated October 2025.

11. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the FSR development standard

12. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

13. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

the development standard has been abandoned by the council;

the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

14. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

15. The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

16. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

17. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the FSR development standard on the basis that the application of the standard to the properties within the Woollahra HCA was an error and is to be rectified by the amending LEP. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way is reasonable and can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. The amending LEP is imminent and certain, as Gateway determination was made by the Minister’s delegate on 3 October 2025 and public exhibition commenced 19 November 2025.

Conclusion

18. The Applicant's written request under cl 4.6 of the Woollahra Local Environmental Plan 2014 prepared by GSA and dated October 2025 for the non-compliance of the development with the FSR development standard under clause 4.4 of LEP 2014 is acceptable.

19. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 20 November 2025 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.

Orders

20. The orders of the Court are:

21. The appeal is upheld.

22. Development Application No. 70/2025, as amended, for the substantial alterations and additions to the existing dwelling at 50A Ocean Street, Woollahra NSW 2025 (Lot 26 DP 225417), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A (539 KB, pdf)