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[2025] NSWLEC 1180
General information, not legal advice.
Land and Environment Court (NSW)
2025-03-14
Horton C
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Medium Neutral Citation: Wells v Woollahra Municipal Council [2025] NSWLEC 1180
Hearing dates: 10 March 2025
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application No 531/2022 for extensive alterations and additions including new attic level fenestration changes to the external walls, separate garage and first floor flat, a carport, a swimming pool and associated landscaping is determined by the grant of consent, subject to conditions of consent at Annexure A.
(3) All Exhibits are returned, except for Exhibits A, C and F
Catchwords: DEVELOPMENT APPLICATION: alterations and additions to heritage item – appeal against conditions of consent – height is exceeded – effect of proposed development on heritage significance
Legislation Cited: Conveyancing Act 1919, s 88E
Environmental Planning and Assessment Act 1979, ss 4.45, 4.46, 4.47, 4.48, 8.7, 8.14,
Heritage Act 1977, ss 57, 58, 60
Interpretation Act 1987, s 33
Land and Environment Court Act 1979, ss 34AA, 39
Environmental Planning and Assessment Regulation 2001
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Part 6.2, ss 2.6, 6.6, 6.7, 6.9
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1, 4.2
Woollahra Local Environmental Plan 2014, cll 4.3, 4.6, 5.10, 6.1, 6.2, Sch 5
Cases Cited: Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Texts Cited: Woollahra Development Control Plan 2015
Category: Principal judgment
Parties: Brett Wells (Applicant)
Woollahra Municipal Council (Respondent)
Representation: Counsel:
N Eastman SC (Applicant)
M Astill (Respondent)
Solicitors:
Hall & Wilcox (Applicant)
Woollahra Municipal Council (Respondent)
File Number(s): 2024/362854
Publication restriction: Nil
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The owner of a state heritage item in Edgecliff brings this appeal in respect of consent granted for development on the site. The consent for alterations and additions to the existing dwelling, and for a secondary dwelling, known as a nanny flat, was granted subject to conditions that are considered unreasonable by the owner of the property, and Applicant in these proceedings, Dr Brett Wells.
Dr Wells filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking consent to be granted subject to conditions that exclude those conditions to which objection is taken.
I note here that the dispute in respect of the conditions, the subject of the appeal were, in part, resolved as a consequence of the conferring between experts in heritage and planning and by the amending of development application No. DA531/2022/1, filed with the Court on 1 October 2024, by Notice of Motion that was granted by the Court on 7 March 2025.
The appeal was listed for mandatory conciliation on 10 March 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
After an onsite view, the conciliation conference convened at Court, however as the parties failed to reach in-principle agreement on those issues in dispute, I terminated the conciliation and proceeded forthwith to hearing.
The site is a battle-axe lot located on the northern side of Albert Street, with an access handle connecting to Albert Street that is around 5.3m in width.
The site is identified for its heritage significance at a state level, and is listed as “Fenton”—house and interiors, gardens, gateposts, gates in Sch 5 of the Woollahra Local Environmental Plan 2014 (WLEP). As the item is listed as a state heritage item, the provisions of s 57(1) of the Heritage Act 1977 (Heritage Act) also apply to the proposed development.
The existing building on the site is a two storey detached dwelling with garage erected in 1919. As such it is characterised as an inter-war dwelling.
The dwelling itself is set well back on the lot, with a large entry forecourt dominated by a large Ficus macrocarpa, or Hills Fig Tree, at the centre point of a circular drive and enclosed by a perimeter wall. A single storey structure occupies the south east corner of the forecourt, identified as a former garage.
The site also adjoins a heritage item known as St Josephs Church at 12 Albert Street and is in the vicinity of St Joseph’s Friary next door at 14 Albert Street.
The site is also located within the Rosemont Precinct of the Woollahra Heritage Conservation Area (Woollahra HCA) in which the site is identified as a contributory item.
The significant characteristics of the Rosemont Precinct are set out in Part C2.3.1 of the Woollahra Development Control Plan 2015 (WDCP) in the following terms:
Significant characteristics
A subdivision pattern developed from former estates made up by large, sometimes irregularly shaped, lots that respond to the hilly topography and Edgecliff Road.
Remnant substantial houses orientated towards the harbour views. Landscape features of the large early estates such as ‘Rosemont’ in Rosemont Avenue, the terraces and sandstone retaining walls from ‘Eynesbury’ in Albert Street, the Kauri Pine from the grounds of ‘Quiraing’ at 2 Trelawney Street and the later subdivision of Quambi and ‘Hillside’.
Streetscapes of mature street trees, including the avenue of plane trees on Rosemont Avenue and the figs and plane trees on Edgecliff Road and Ocean Street. Substantial sandstone retaining walls respond to the steep topography.
The combination of substantial Victorian houses within landscaped ground, located beside large Victorian or Federation terraces or semi-detached houses and Inter-War period houses and residential flat buildings. Gardens often contain mature trees such as pines, planes and figs. Front fences and gates are designed in association with, and to complement, the buildings behind.
The variety of its residential architecture, which includes:
− detached and semi-detached Victorian houses with external masonry walls of unpainted sandstone or painted stucco, often with decorative painted cement render mouldings. Roofs are steeply pitched and were generally originally clad in slate. Windows are vertically proportioned painted timber double-hung sashes. Porches or verandahs often had cast iron filigree detailing;
− detached and semi-detached Federation houses usually in the Queen Anne style. Walls were originally unpainted brickwork. Open verandahs have turned and fretted timber work. Roofs are steeply pitched with tall chimneys and clad with slate or Marseilles pattern terracotta roof tiles. Windows are casements or double hung sashes with multi-paned tops lights;
− Inter-War houses in an eclectic variety of styles typical of the period, including Spanish Mission, Mediterranean, Georgian Revival and Old English, usually with painted stucco walls and Roman, Spanish or Marseilles pattern tiles. The houses sometimes combine detailing from a number of these styles; and
− Inter-War flat buildings usually in face brick with terracotta tiled roofs. The styles of the flat buildings often demonstrate the influence of the Inter-War domestic styles for detached houses. Skyscraper Gothic styled apartments are also present.
Garages and carports that are generally located within the property at some distance from the front boundary or accessible from a side street.
Substantial Victorian and Federation institutional and public buildings including the former Woollahra Council Chambers [Goethe Institute], Woollahra Public School and Fire Station, All Saints Anglican Church, St Columba Uniting Church, Little Sisters Convent and Wolper Hospital.
Chiswick Gardens, a municipal garden established in 1938.
Objectives
O1 To conserve the curtilages of the former estates and their landscaped garden settings, including outbuildings and fences.
O2 To conserve the institutional public buildings and mature street trees.
O3 To encourage contemporary infill development to respond appropriately to the Victorian, Federation and Inter-War housing which dominate the precinct.
O4 To encourage alterations and additions to existing buildings which retain and enhance the character of the building and the streetscape.
Development consent was granted to the proposal by the Council on 24 April 2024, subject to conditions of consent at Condition A.5 that did not approve the following aspects or elements of the development the subject of the development application:
A proposed garage/loft structure referred to as a ‘Nanny flat’, including an external stair, terrace and planter.
Demolition and construction of fencing to the western side boundary.
A proposed carport structure connecting to the front elevation of the existing dwelling.
A northern, rear-facing dormer window
Any works to the proposed kitchen that would allow the lower ground floor to be used as a separate domicile.
Any sauna or steam room.
Certain species of trees identified on the Landscape plans as ‘Leighton Green’.
Relatedly, the conditions of consent also require certain design changes that are considered by experts in planning and heritage.
In respect of those planning issues in dispute, the Court was assisted by Mr George Karavanas on behalf of the Applicant, and Ms Larissa Holbert on behalf of the Council who conferred in the preparation of a joint expert report (Exhibit 3).
On matters of heritage, the Court was assisted by the evidence of Ms Vanessa Wood, on behalf of the Council, and Mr Philip North, on behalf of the Applicant. The experts conferred in the preparation of a joint expert report filed with the Court on 27 February 2025. (Exhibit 4)
While the dispute is framed by the parties in respect of conditions of consent, the Court hears the appeal under s 8.7 of the EPA Act, and exercises the functions and discretions of the Council as consent authority.
As such, while certain matters may not be in dispute, the parties accept that these other jurisdictional preconditions can be met, but I note that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied that the preconditions have been met.
The first such issue is the exceedance of the height standard of 9.5m found at cl 4.3(2A) of the WLEP. The existing dwelling has a maximum height of 10.805m, according to the written request authored by GSA Planning dated March 2025 (Exhibit B).
While the Council does not press a contention in respect of height, and does not propose conditions of consent as to height, cl 4.6 of the WLEP, in the form it was at the time the development application was lodged with the Council, requires the Court to be satisfied of those matters at cl 4.6(4) of the WLEP in order to enliven the Court’s power to consider the grant of consent.
The proposal includes changes within the envelope of the existing roof, and the dormer that is considered in more detail at [63]-[73], and which is a component of the height exceedance.
The written request adopts what is known as the ‘Wehbe 1’ test and asserts compliance with the standard is unreasonable or unnecessary in the circumstances of this case as the proposal is consistent with the objectives of the height standard, notwithstanding the non-compliance.
The relevant objectives of the height standard addressed by the written request are as follows:
(a) to establish building heights that are consistent with the desired future character of the neighbourhood,
…
(c) to minimise the loss of solar access to existing buildings and open space,
(d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,
(e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
Objective (a) is achieved as the existing height of the building on the site is unchanged by the proposal, but is rather within the roof space and replacement of the roof surface. While the proposed dormer window is a new element that exceeds the permitted height, it is not visible from the public domain or neighbouring dwellings and the exceedance is minor.
Objective (c) is achieved by the development being largely within an existing envelope and so limiting impact on solar access to that which exists.
For similar reasons, objectives (d) and (e) are also achieved. The proposal does not exceed the existing envelope in a manner that would disrupt views, compromise privacy, overshadowing or visual intrusion.
Next the written request sets out environmental planning grounds the Applicant relies on as sufficient to justify the exceedance, summarised as follows:
Strict compliance with the height standard would require removal of the principal roof form, or otherwise lowering the existing built form on a building that is listed for its heritage significance, and would effectively inhibit any improvement work to the roof level of the building, with adverse implications for the heritage item, and unnecessarily complicate the orderly and economic development of the land.
The proposed floor space within the roof is not more than a technical breach, and one that is not discernible from surrounding properties or the public domain.
While the written request does not set out the means by which the proposal achieves the objectives of the R3 Medium Density Residential zone, in which dwelling house development is permitted with consent, those objectives 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.
I accept that the proposal is consistent with the objectives of the zone set out above. In respect of the last objective, while a large number of trees are being removed, I note a number of those existing trees to be removed are to be removed to permit the refurbishment of the existing circular driveway, and the Landscape Plans demonstrate sufficient replacement planting to enhance tree canopy cover.
I note here that neither the Council nor its experts dispute that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, or that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R3 zone.
Furthermore, the Council does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.
Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.
I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 Zone.
In forming this opinion of satisfaction, I agree that the envelope is unchanged in respect of height, other than the dormer window which exceeds the height standard by 120mm, which I consider to be negligible in both qualitative and quantitative terms. Relevantly, I also accept the exceedance of the height by the dormer window beyond the existing envelope imposes not impact on amenity to surrounding properties or the public domain.
I am also satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the height standard. The exceedance is a pre-existing condition that effectively results from the steep pitched roof slope that is an essential aspect of the original design of the dwelling.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the height request.
The second jurisdictional precondition to be considered relates to the merit issues in respect of heritage. The crux of the dispute between parties lies in whether the Court may refuse consent on heritage grounds if the same development is the subject of a heritage approval: s 4.48 of the EPA Act.
It is relevant to note that the Heritage Council has provided general terms of approval (GTA’s) (Exhibit A, Tab 27). The GTA’s are said to be prepared in accordance with s 4.47 of the EPA Act. The GTA’s approve the development, except as amended by item 2 of the GTA’s that require “revised architectural and landscape plans are to be submitted with the s60 application for approval”.
In essence, the Applicant submits that the particular terms of the GTA’s are terms of heritage approval, as defined at s 4.45 of the EPA Act, that direct the reader to the provisions at s 57(1) of the Heritage Act.
Section 57(1) is in the following terms:
(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3—
(a) demolish the building or work,
(b) damage or despoil the place, precinct or land, or any part of the place, precinct or land,
(c) move, damage or destroy the relic or moveable object,
(d) excavate any land for the purpose of exposing or moving the relic,
(e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,
(f) alter the building, work, relic or moveable object,
(g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct,
(h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.
The approval granted by the approval body under Subdivision 1 of Division 3 is reference to s 58 of the Heritage Act that applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57(1).
The operation of the statutory regime flows from s 4.46 of the EPA Act which refers an applicant to s 58 of the Heritage Act, in accordance with which a heritage approval may be provided by the Heritage Council. Having secured such an approval, s 4.48 precludes a consent authority from citing heritage grounds as a reason for refusal.
Absent authorities on the operation of the regime, an exercise in statutory construction is required, the object of which is to construe the statutory provision so it is consistent with the language and purpose of the statute when construed as a whole: Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 and where the construction would should promote the purpose or object underlying the relevant statute (s 33 of the Interpretation Act 1987).
So understood, the intent and purpose of s 4.48 must be to assign a certain primacy to the Heritage Council determination that the Council now seeks to partially refuse by imposing the terms of Condition A.5 summarised at [14].
This primacy is supported by reference to the text of the second reading speech on the proposed Heritage Amendment Bill 2009, delivered by the then Minister for Planning:
“…It is logical that the State’s prime heritage body, the News south Wales Heritage Council, should have a primary role in assessing the heritage impact of a development. The Government does not see why a local council should be able to refuse a development on heritage grounds when it has been rigorously assessed and approved by the Heritage Council. These amendments will ensure greater consistency between a development consent granted under the Environmental Planning and Assessment act 1979 and an approval under the Heritage Act, and also provide for a more effective integration of heritage issues in the planning process.”
Next, the Applicant submits that notwithstanding the broad powers of the Court on appeal at s 8.14(4) of the EPA Act, those powers are directed to general terms of approval, and not to heritage approval within the meaning of s 4.45 of the EPA Act. Quite simply, heritage approval has been obtained. Once granted, no heritage grounds can operate to counter that approval.
While the Court is exercising the functions and discretions of the consent authority in determining the matter on appeal, the Court’s functions and discretions are those functions and discretions of the consent authority. Just as the consent authority is constrained by s 4.48 of the EPA Act, the Court ought to heed the same provision when exercising the functions of the consent authority under s 39(2) of the LEC Act.
The Council submits that the Court is not constrained or confined by s 4.48 of the EPA Act, while s 8.14(4) provides that the Court is not bound by general terms of approval and may determine an application for integrated development regardless of whether general terms of approval exist, or the nature of their content.
That said, it is relevant that the GTA’s provided by the Heritage Council are just that. They are not an approval of a kind sought under s 60 of the Heritage Act, nor that to which s 4.48(2) of the EPA Act refers.
As such, there is no restraint on Council’s determination of the development application on heritage grounds.
In my view, there is a twofold distinction in the EPA Act between the power granted to the Council as consent authority at subss 4.47(3) and (4), and the power available to the Court at s 8.14(4).
At subs 4.47(3), the consent granted by the consent authority must be consistent with the general terms of any approval granted by the approval body. Next, subs 4.47(4) requires the Council to refuse consent if the approval body determines not to grant approval.
The Court is not so constrained. The provisions at s 8.14(4) of the EPA Act are virtually identical to those at s 39(2) of the LEC Act and operate to permit the Court to determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body (s 8.14(4)(a)). Neither is the Court bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval (s 8.14(4)(b)). In fact, the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body (s 8.14(4)(c)).
Such a distinction is relevant when the GTA’s issued by the Heritage Council are properly understood.
While it is unfortunate that the Heritage Council GTA’s dated 3 November 2023 are issued under the heading ’Section 38 Amendment to Integrated Development Application’, I accept it is of no real consequence. The terms of the GTA’s make clear the person issuing the GTA’s is a delegate of the Heritage Council, and that the GTA’s are issued in accordance with s 4.47 of the EPA Act.
I accept that the Heritage Council GTA’s dated 3 November 2023 are general terms of an approval proposed to be granted by the Heritage Council. Council’s without prejudice conditions of consent, and those filed by the Applicant, anticipate an application under s 60 of the Heritage Act to the Heritage council prior to the issue of any Construction Certificate.
In practical terms, the Court understands that a development application for development that is identified as integrated development under s 4.46 of the EPA Act is lodged on the planning portal, and relevant authorities are notified of the development application. General terms of approval are, or are not, provided by the relevant authorities. In the event GTA’s are provided, s 4.47(3) requires a consent granted by a consent authority to be consistent with the GTA’s of any relevant approval body.
I note that GTA’s issued by the Heritage Council dated 13 June 2023 (Exhibit 1, Tab 26) listed the following as works that were not approved by the GTA’s issued on that date:
New carport
Dormer windows on the east and west elevations (rear dormers on north elevation permissible with design alteration)
Demolition of the low wall (balustrade) on the north terrace (balcony) (see condition for detailed design of proposed solution to meet Australian Standards requirements)
Inclusion of bifold shutters on the north terrace
Widening the opening/doorway leading to the terrace from proposed bedroom six
Enclosing the arches to the loggia in the central portion of the lower ground floor with new glazed doors. Arches are to remain open.
Demolition of any original cabinetry. Excludes the cupboard between the hall and existing bedroom 3.
Proposed exterior paint scheme to Fenton
Removal and relocation of the French door between the existing dining room and sunroom.
However, email correspondence between the Applicant and the Council in September 2023 records that the development application was amended and lodged on the Planning Portal 11 September 2023, and was ‘re-referred’ by the Council on 18 September 2023.
The GTA’s dated 3 November 2023 relevantly omit reference to those matters at [59] that were not approved by the GTA’s issued on 13 June 2023.
The Court’s powers at s 8.14(4) of the EPA Act are to be broadly construed, and construed even more broadly when reference is had to s 39(6) of the LEC Act. It is, in my view, unnecessary to determine whether or not the contentions pressed by the Council in respect of heritage are permitted or otherwise by the provisions at s 4.48(2) of the EPA Act, because I choose to consider those matters and, for the reasons that follow, I find the proposal acceptable in terms of the heritage significance of the site in accordance with cl 5.10(4) of the WLEP, and so the Court adopts the conditions proposed by Wells in respect of heritage. Put another way, the answer to the question at [38] is that the Court has power to determine the matter before it.
It is relevant to note that the proposal is supported by general terms of approval (GTA’s) issued by Heritage NSW on 3 November 2025. Those terms, when read in conjunction with the architectural plans the subject of the GTA’s, appear to support for a dormer window to the northern roof plane.
Notwithstanding the GTA’s, Council’s heritage expert, Ms Vanessa Woods’ evidence is that the dormer window in its proposed state does not retain an enhance the character of the building, would be adverse to the heritage significance of the item and could set an undesirable precedent within the Rosemont Precinct, and so adversely affect the wider Woollahra HCA.
The basis for this, according to Ms Woods, is Part C2.4.2 of the WDCP that seeks the retention of roof forms and the judicious use of appropriately styled dormer windows suited to the architectural style, building type and construction period of the subject site.
The proposed rear dormer does not relate to the material, scale or detail of the existing dwelling. Instead, it is oversized and visually dominates the rear elevation.
Figure 21 of the WDCP, at Chapter C2.5.5, re-produced below, illustrates the prescriptive form of typical dormers deemed acceptable to Federation period cottages, semi-detached dwellings and terraces.
Ms Woods considers a horizontal dormer of around 2.2m in length to be acceptable. However, the proposed dormer is approximately 6m in length.
Mr North cites examples of such wide dormers in dwellings of the Georgian Revival style, and believes the scale and detail of the proposed dormer retains the dominance of the rear roof form, including original ridges, hips and other original design elements, and is ultimately not visible from Albert Street.
While the experts are apart on the degree of impact likely to result from the dormer proposed, it is commonly held by the experts that some improvements can be made.
As I understand the evolution of the architectural plans, the dormer was further amended from those plans considered by the heritage experts, dated 23 November 2023, to include drawing A2001 Rev K, dated 28 February 2025.
While the scale of the proposed dormer exceeds that depicted in Figure 21, at [67], I accept and prefer Mr North’s evidence that the scale of the dormer must be seen in context with a large and steep roof plane. The dormer sits reasonably high in the roof pitch, so that it is surrounded by terracotta roofing and does not impose on either the ridgeline or the gutter or fascia line below. The side fascias to the dormer are detailed on drawing A2001 in manner that would appear sympathetic to a building of this era.
Finally, I note that the location of the dormer is entirely out of view from the public domain. This is not to diminish the degree of consideration or care that should rightly be given to a proposal to intervene in historic building fabric, let alone a state heritage item. However, when the form and location of the proposed dormer are considered, I conclude it is unlikely to form a precedent, let alone one that is undesirable.
A carport is proposed to be constructed to the south west of the existing dwelling. Ms Woods’ evidence is that such a structure is inappropriate forward of the existing building line and in such a prominent location – visible upon entry to the site.
Furthermore, the dimensions of the carport, while not initially evident on the architectural plans, exceed those of the minimum and as such it is over-scaled.
Mr North maintains the objectives and controls relied on by Council at Part C2.5.8 of the WDCP should not, or cannot, apply to a battle-axe site where the principal façade is not visible from the street and where the location of the carport is such that it is only evident once a visitor has entered the entry forecourt. Furthermore, the carport is located adjacent to ‘service elements’ such as stairs, is visually subservient to the principal façade and is clear of the turning circle in the entry forecourt.
I note the carport is not a structure in isolation, but stands, as is to be expected, on a new paved driveway that requires the removal of Trees 20-23. The removal of those trees is not contested by the Council, and provision is made within the without prejudice conditions of consent filed by the Council for their removal. I note the Arboricultural Impact Assessment prepared by Koala Arbor Consulting (Arboricultural Assessment) (Exhibit A, Tab 37) assesses the health of these trees as Poor or Fair, and the landscape plan prepared by Conzept (Exhibit A, Tab 36) proposes two replacement trees in the vicinity of trees 20-23.
The Carport structure is shown as freestanding, clear of the existing dwelling. As such I accept it is a modest structure that is a reversible addition to the site, consistent with good heritage conservation practice.
A garage structure is proposed to the south east of the entry forecourt, with accommodation above in the form of a one bedroom apartment, referred to as a ‘Nanny flat’.
The Council contends the first floor structure is over-scaled and inconsistent with the desired future character of the Rosemont Precinct and Woollahra HCA. Part C2.5.8 of the WDCP allows single storey garage structures, except for particular locations in Sisters Lane, in West Woollahra or Grafton Precinct permitted by Control C14.
As the proposed garage and nanny flat are not located in areas dealt with by Control C14, the Council regards the structure in appropriate. Furthermore, the design is contemporary, unrelated to the character of the existing dwelling, and where the external stair and terrace are likewise out of place.
Finally, the upper portion of the nanny flat structure will be visible from the adjacent heritage listed church, and also obstruct views to that heritage item from the site.
Mr North believes the controls lack relevance given the battle-axe form of the site, and given the garage and apartment structure is unlikely to be read together with the front elevation of the existing dwelling. The contemporary design is ‘architecturally quiet’ so will not compete with the exiting heritage dwelling.
Furthermore, while the proposal will obstruct views to neighbouring properties, this is a positive given the unsympathetic form and materials of the St Joseph’s Parish Centre, and where views to St Josephs Church are obscured, it is likely limited to elements that are not original or are secondary.
On the basis of the onsite view, I agree that the view to the existing dwelling on the site will be removed by the first floor built form located above the proposed garage structure. However, the view is largely enjoyed from within the church site, against a backdrop of tall apartment buildings located to the north of the site, with no association between the church or the subject site identified in the Statement of Heritage Impact prepared by Dewar Studio in association with Mr Howard Tanner (Exhibit 1, Tab 15). I do not understand there to be historical significance to the views either to or from either site.
The view is not retained by the Council’s proposal for a shortening of the length of the built form at Condition C.1(g)(iv), or any other aspect of the amendments sought in Condition C.1(g).
Curiously, the roof material and finish that would be visible from the public domain and from St Joseph’s church, is entirely absent from the architectural plans. However, the Council has sought to cure this by a condition of consent at Condition C.1(e) requiring the roof to the nanny flat to be Colorbond Custom Orb in a range of colours nominated.
As I do not understand the obstruction of view to the existing dwelling to compromise any associative or other criteria of heritage significance, and the roofing material and finish are nominated by the Council, and the changes sought by the Council would have no effect on the degree of obstruction, I do conclude the effect of the proposed built form will not act to diminish or compromise the Woollahra HCA. Those elements within the site, such as the external stair, terrace and planter, appear modest and are not viewed alongside the existing dwelling, but are instead apart and distinct.
During the onsite view, the Court was taken to the north facing terrace on level 1. The proposal seeks consent for bi-folding shutters above a new frameless glass balustrade and retractable awnings within 3 structural bays.
Ms Woods regards the shutters to be overly contemporary, uncharacteristic and likely to set an undesirable precedent for alterations to significant buildings in the Woollahra HCA.
The proposal fails to conform to certain objectives at Part C2.5.4 of the WDCP that predominantly deal with external materials, finishes and colours, and does not conform to Control C11 which provides:
C11 Original verandas and balconies are not to be altered except for the reinstatement of original details and the reversal of unsympathetic alterations.
Mr North notes the use of timber shutters in historical photos of the existing dwelling that he considers a precedent for use on the terrace as a means of weather protection, however supports the preparation of details at 1:20 or 1:50 scale that are not in evidence.
I accept Mr North’s evidence that timber shutters are not foreign to the existing dwelling and I consider the 3-dimensional drawings on architectural drawing A2001 sufficient to satisfy me that the installation of sliding shutters do not serve to permanently enclose the verandah, and that the materials, finishes and colours can be a matter determined prior to the issue of a construction certificate.
Having considered those matters that are principally contested, I conclude that the effect of the proposed development on the heritage significance of the heritage item, and on the Woollahra HCA, is acceptable in accordance with the terms of cl 5.10 of the WLEP.
While not otherwise in dispute, it is necessary to consider those other jurisdictional preconditions to the grant of consent required by the WLEP, in the form it was as at the date of lodgement of the development application, and other relevant environmental planning instruments.
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. However, the elevation of the land expressed in terms of the Australian Height Datum (AHD), it is clear that excavation is not planned below 5m AHD. Having regard to the results of boreholes recorded in the Geotechnical Investigation prepared by Green Geotechnics dated 15 December 2022 (Geotechnical Assessment), I am also satisfied that the watertable will not be lowered by the proposed development.
On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the WLEP and conclude that the earthworks proposed, being largely limited to excavation for the swimming pool to the rear, will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:
Geotechnical Investigation
Amended Landscape Plan prepared by Conzept landscape architects (Exhibit A, Tab 36)
Amended Stormwater Drainage Plans prepared by AE Consulting (Stormwater Plans) (Exhibit A, Tab 39)
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The Arboricultural Assessment assesses the impact of the proposal on 42 trees, both on the subject site and on adjoining sites. Twenty two trees are proposed to be removed, and ten are proposed to be retained. Section 10 of the Arboricultural Assessment states that no pruning is required to any trees proposed to be retained. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.
The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Pt 6.2 of Biodiversity SEPP applies.
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.
The Stormwater Plans depict storage of stormwater in a pump out chamber to the rear of the site with a capacity of 7.7m3, first flush devices and a rainwater tank located below the carport structure with a volume of 54.5m3, that is annotated for non-potable reuse. While the Council assessment report (Exhibit 1, folio 288) applies a different test to that required of it by s 6.6 of the Biodiversity SEPP to state that the proposal will have no significant adverse impacts on the Sydney Harbour Catchment, I am satisfied that the on site detention and reuse of stormwater, combined with the first flush devices depicted in the Stormwater Plans, will result in a neutral or beneficial effect on water quality in the catchment, and will manage the flow of water into that catchment. I also note the expert report of Mr Robert Lam, Development Engineering Team Leader for the Council (Exhibit 2) that supports the proposed stormwater strategy as it minimises stormwater runoff and improves overall water conservation.
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.
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.
While the Council supports the proposed Stormwater arrangements, it seeks to impose a condition of consent requiring a positive covenant to be created on title, in accordance with s 88E of the Conveyancing Act 1919.
Mr Lam’s written evidence is that such a covenant is consistent with the WDCP requirement for any on-site stormwater detention such as rainwater reuse tanks and is desirable to ensure future owners are aware of their responsibilities to maintain the system in good working order, including regular inspections, cleaning of filters, repairing of pumps and the like. Failure of the stormwater collection, retention and drainage system may increase the flood risk on downstream properties.
The Applicant submits that the proposed terms of Condition H.5 that are sought to be imposed by the Council are unnecessary as the matters listed at points (a)-(g) relate to certification of the stormwater arrangement detailed by the Stormwater Plans in any event. Next, the Applicant relies on a line of authorities that are said to regard the registering of a covenant on title with caution where a condition would otherwise suffice.
The condition as proposed by the Council is directed to a system that is defined in the plans and documents listed at Condition A.3 of the without prejudice conditions of consent, and is for the purpose of imposing an obligation on the owner of the land to ensure ongoing maintenance of a stormwater system on private land that connects to public infrastructure, via an easement over land at 2-6 Albert Street, and within the Sydney Harbour Catchment in respect of which water quality and flow are relevant matters of consideration. I consider such a condition to be for a planning purpose, and to relate in a fair and reasonable manner to the proposed development, and so adopt the Council’s condition in this respect.
The application is accompanied by a BASIX certificate (Cert No. A479923_02 prepared by Paul & David Consulting and dated 11 March 2025) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2001.
The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that has the effect of saving the development application from the provisions of Sustainable Buildings SEPP such that the provisions of s 2.1 are not in effect.
The Court orders that:
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Wells
Woollahra Municipal Council [2025] NSWLEC 1180
(1998) 194 CLR 355