Taylor v Woollahra Municipal Council

Texts Cited: Woollahra Community Participation Plan, 26 June 2023
Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: Ian Taylor (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
R Kandola (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/238951

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: The majority of properties located on the northern side of Paddington Street in the inner Sydney suburb of Paddington also enjoy a frontage to Paddington Lane.

2. It is to the rear of the property at 162 Paddington Street that development is proposed in the form of alterations and additions to an existing rear garage structure to accommodate a pool cabana and swimming pool in the existing courtyard, and associated landscaping.

3. Development application No. DA2024/63/1, lodged with Woollahra Municipal Council (the Council) on 8 March 2024, sought consent for such alterations and additions. The Council advertised the development application for a period of 14 days in accordance with the Woollahra Community Participation Plan.

4. The development application was refused on 3 May 2024, and the Applicant, Mr Taylor, filed an appeal in Class 1 of the Court’s jurisdiction on 28 June 2024 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 March 2025. I presided at the conciliation conference.

6. Prior to the conciliation conference, the parties reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 March 2025.

8. 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.

9. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

10. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised.

11. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

12. The site is located in the R2 Low Density Residential zone, according to the Woollahra Local Environmental Plan 2014 (WLEP), in which dwelling house development is permitted with consent, where consistent with the following objectives of 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.

13. A height standard of 9.5m applies to the site, according to the relevant map at cl 4.3(2) of the WLEP. The proposal has a maximum height of 5.5m, and so complies.

14. The site is not identified as a heritage item under Sch 5 of the WLEP, but is located within the Paddington Heritage Conservation Area (Paddington HCA), and adjoins Heritage Item I265 described as “31 London Plane Trees, 17 Hill’s Weeping Figs, 3 Red Apples” located in the Paddington Street road reserve. On the basis of the agreement between the parties, resulting from the amendments depicted in the architectural plans prepared by Smart Design Studio, and the conclusions reached in the Heritage Impact Statement prepared by Zoltan Kovacs Architect dated November 2023, I accept the proposed development is acceptable within the Paddington HCA, and does not impose an adverse impact on Heritage item I265 in terms at cl 5.10(4) of the WLEP.

15. As a portion of the site is within the flood planning area identified by the Paddington Floodplain Risk Management Study and Draft Plan, the provisions at cl 5.21 of the WLEP apply. On the basis of the amended Flood Impact Assessment Report prepared by C&M Consulting Engineers dated February 2025, I am satisfied that the development is compatible with, and will not adversely affect, the flood behaviour of the land or of adjoining properties, and will not adversely affect the safe occupation of the site or affect the environment in terms set out at cl 5.21(2) of the WLEP. In part, this satisfaction derives from the requirement, at Condition D.16 of the agreed conditions of consent, for a Flood Risk Management Plan to be installed in a prominent area of the garage.

16. While the site is located on land mapped as ‘Class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the WLEP, no excavation is proposed to give effect to the consent and so an acid sulfate soils management plan is not required.

17. I also note that the provisions at cl 6.2 of the WLEP dealing with earthworks are similarly not relevant to the proposed development.

18. The proposed amended landscape plan (DA754) proposes a new medium sized tree with a pot size of 100L and minimum dimensions at maturity of 8m x 6m which serves to minimise the urban heat island effect and to adequately replace existing tree canopy, in accordance with cl 6.9 of the WLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. One tree is proposed for removal and, as stated at [18], a replacement tree is proposed. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

20. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Part 6.2 of the Biodiversity SEPP applies.

21. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

22. The Stormwater Plans depict the storage of stormwater in a rainwater tank, and, connected to Council’s drainage system in a manner that is to conform to water conservation and stormwater quality targets set out in Council’s Woollahra Development Control Plan 2015 Chapter E2 – Stormwater and Flood Risk Management. I am satisfied that the on site detention of stormwater minimises the flow of water into the catchment, and that the condition of consent agreed between the parties at Condition D.15(j) will result in a neutral or beneficial effect on water quality in the catchment.

23. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

24. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Statement of Heritage Impact provides a detailed historical chronology of the use and occupation of the site, supported by maps and plans of the area from 1886, and aerial photographs from 1943. There is no use or activity that would suggest the site is contaminated or requires remediation. As such, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Building) 2022

26. The application is accompanied by a BASIX certificate (Cert No A1775698_03, prepared by Delisle Hunt Wood Pty Ltd dated 6 February 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

27. An embodied energy report is also provided, prepared by QS Plus Quantity Surveyors Pty Ltd, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

28. 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.

29. 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.

30. The Court notes that:

31. The Council, Woollahra Municipal Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA2024/63/1 in accordance with the amended plans and documents in Annexure A.

32. The Applicant filed the documents in Annexure A with the Court on 21 March 2025.

Orders

31. The Court orders that:

32. The Applicant is granted leave to amend the Development Application DA2024/63/1 in accordance with the plans and documents referred to in Annexure A.

33. The appeal is upheld.

34. Development Application No DA2024/63/1, as amended, for alterations and partial demolition of an existing garage to facilitate a double garage with pool cabana above and alterations to the existing courtyard and pool including landscaping on the land at 162 Paddington Street, Paddington (being Lot 38, Section 1 in DP 180) is determined by a grant of consent subject to conditions contained in Annexure B.

T Horton

Commissioner of the Court

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Annexure A

Annexure B