Willowbrook Holdings Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979, s 34
Water Management Act 2000, s 90
Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Woollahra Local Environmental Plan 2014, cll 4.3, 4.4, 4.6, 5.21, 6.1, 6.2

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Woollahra Council, Double Bay Centre Planning and Urban Design Strategy

Category: Principal judgment

Parties: Willowbrook Holdings Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
I Hemmings SC (Applicant)
M Staunton (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/00309585

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a new five-storey commercial building with basement storage, four ground floor retail tenancies, three commercial tenancies, and two residential apartments at 3 Knox Street, Double Bay. A development application for an earlier iteration of the proposed development was lodged on 28 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 9 May 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 7 May 2025.

4. The agreement was the subject of some further changes and the final iteration was filed on 9 May 2025. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments are updated written requests concerning the breach of the height and floor space ratio (FSR) development standards, as well as an updated BASIX certificate.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement, which sets out the jurisdictional prerequisites to the exercise of the power to grant development consent (the Statement). I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition A.3. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

7. The proposed development is for the purpose of commercial premises and shop top housing, which are both nominated permissible uses in the E1 Local Centre zone, pursuant to the Woollahra Local Environmental Plan 2014 (WLEP).

8. The proposed development breaches the height development standard of 14.7m, which applies pursuant to cl 4.3 of the WLEP. The proposed development has a height of 18.84m to the roof parapet, and 19.64m to the top of the screening around the Air Conditioner condensers. This is a breach of up to 4.94m. The amended development application is accompanied by a written request pursuant to cl 4.6 of the WLEP as it applied at the time that the development application was lodged. I am satisfied that the request meets the requirements of cl 4.6(3) and can form the basis of the state of satisfaction required by cl 4.6(4)(a). In particular:

(a) The written request adequately establishes sufficient environmental planning grounds that justify the breach, by demonstrating that the proposed five-storey built form envelope achieves the character intended by the Double Bay Centre Planning and Urban Design Strategy (the Strategy) and a Planning Proposal prepared by the Council (informed by the Strategy) that identifies the site as intended for five-storey development. The written request states that the Strategy will apply a height development standard of 19m to the site (although I note that the Planning Proposal, in fact, refers to a height development standard of 18.4m). (b) The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met, notwithstanding the non-compliance. (c) For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard.

3. The proposed development breaches the development standard for FSR. The development standard establishes a maximum FSR of 2.5:1, pursuant to cl 4.4 of the WLEP. The proposed development has a FSR of 3.44:1, which an exceedance of 262.72m2 in gross floor area. This largely results from the additional storey in the proposed development, which breaches the height development standard above. The amended development application is accompanied by a written request pursuant to cl 4.6 of the WLEP as it applied at the time the development application was lodged. I am satisfied that the request meets the requirements of cl 4.6(3) and can form the basis of the state of satisfaction required by cl 4.6(4)(a). In particular:

(a) The written request adequately establishes sufficient environmental planning grounds that justify the breach, by demonstrating that FSR results from a five-storey built form that achieves consistency with the built form outcomes for the site as intended by the Strategy and a Planning Proposal prepared by the Council (informed by the Strategy), which identify the site as being intended for five-storey development. The written request says that the site will benefit from a height development standard of 19m and a FSR of 3.5:1 (although I note that the Planning Proposal, in fact, refers to a height development standard of 18.4m and a FSR of 3.2:1). (b) The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance. (c) For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard.

4. Clause 5.21 of the WLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by Flood Advice dated 1 February 2023. Based on the contents of that advice and the conditions of consent requiring flood protection, I have considered the matters in cl 5.21(3) of the WLEP and I am satisfied of the matters in cl 5.21(2).

5. The site is mapped as having Class 2 Acid Sulfate Soils and the works to be carried out are below natural ground surface. As such, cl 6.1 of the WLEP applies. Consistent with the requirements of cl 6.1(3), an Acid Sulfate Soils Management Plan dated 14 June 2023 accompanied the development application and I am satisfied that any disturbance of acid sulfate soils will be managed to minimise adverse impacts.

6. The development application includes approximately 632m3 of excavation for the provision of the basement level for storage. Based on the Preliminary Geotechnical Assessment by EI Australia dated 6 June 2023, the Construction Management Plan dated 19 June 2023, and the Geotechnical and Hydrological Monitoring Plan dated 31 July 2023, I have considered the matters set out in cl 6.2(3) of the WLEP.

7. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Detailed Site Investigation report dated 26 February 2024, the site can be made suitable for the development.

8. The site falls within the Sydney Harbour Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the Flood Advice dated 1 February 2023, the Stormwater Management Plans that accompany the Class 1 Application, and the Statement of Environmental Effects dated June 2023, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.8(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

9. Consistent with the requirements of s 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 18 November 2024.

10. The development application was advertised and notified from 19 July 2023 to 18 August 2023, and again (following amendments) from 13 December 2024 to 23 January 2025. A number of written submissions were received. In addition, three objectors made oral submissions at the commencement of the conciliation conference on 9 May 2025. I have considered the issues raised in both the written and oral submissions.

11. The proposal is integrated development pursuant to s 90 of the Water Management Act 2000. Water NSW has provided general terms of approval under s 90 of the Water Management Act, and those terms of approval are incorporated into the conditions, at condition A.7.

12. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

13. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

14. The Court notes:

15. Woollahra Municipal Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the Applicant amending development application no. DA223/2023/1 in accordance with the following plans and documentation (Amended Application):

(a) Clause 4.6 request prepared by GSA Planning dated April 2025 in relation to a variation to clause 4.3 (height of buildings) (b) Clause 4.6 request prepared by GSA Planning dated April 2025 in relation to a variation to clause 4.4 (FSR) (c) BASIX Certificate no. 1356451M_04 dated 18 November 2024 (d) BASIX Assessment Report prepared by Integrated Group Services dated 18 November 2024

11. The Court orders that:

12. The appeal is upheld.

13. The clause 4.6 request prepared by GSA Planning dated April 2025 in relation to a variation to clause 4.3 (height of buildings) of the Woollahra Local Environmental Plan 2014 is upheld.

14. The clause 4.6 request prepared by GSA Planning dated April 2025 in relation to a variation to clause 4.4 (floor space ratio) of the Woollahra Local Environmental Plan 2014 is upheld.

15. Development consent is granted to development application no. DA223/2023/1 for the demolition of a partially constructed existing building and construction of a new five-storey building with one basement storage level, four ground floor retail tenancies, three commercial tenancies, and two residential apartments, subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

Annexure A (666 KB, pdf)

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