Xue v Woollahra Municipal Council

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s (then) deemed refusal of the applicant’s modification application seeking to modify DA2023/12/1 (Original Consent). The Original Consent was granted by the respondent on 21 December 2023 and approved the demolition of an existing dwelling and construction of a new dwelling house on land at Lot 2 in Deposited Plan 666592, known as 44 Towns Road, Vaucluse (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The M****odification A****pplication

3. The modification application (DA2023/12/4) was lodged with the respondent on 2 October 2024 pursuant to s 4.55(2) of the EPA Act and sought to amend the Original Consent by deleting condition C.1(a) of the Original Consent and making changes to all levels of the proposed dwelling (Modification Application), namely:

4. Lower Ground Floor Plan:

(a) increase excavation to accommodate storage, plant equipment, a gym games room and sauna; (b) add four new windows to the southern elevation;

2. Ground Floor Plan:

(a) increase Bedroom 3 courtyard to align eastern wall with ensuite, amending setback to Chamberlaine Avenue and adding a skylight; (b) reconfigure southern wing including master suite, laundry and Bedroom 4; (c) increase Bedroom 4 terrace setback; (d) new entry landing off corridor for Chamberlaine Avenue courtyard; (e) revised fenestration;

3. Entry Floor Plan:

(a) remove cellar, increase tea room; (b) revised fenestration;

4. Roof Plan:

(a) increase roof at the rear to cover terrace; and (b) minor decrease to front awning.

4. On 14 November 2024, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s (then) deemed refusal of the Modification Application.

5. The proceedings were commenced within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. On 6 December 2024, the respondent determined the Modification Application by way of refusal.

7. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 and 6 May 2025. I presided over the conciliation conference.

8. At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. An agreement was filed on 6 May 2025 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application are set out in the updated architectural plans prepared by Studio Johnston (Rev 05) and reflected in the updated BASIX Certificate (Number 1362263S_04) prepared by Taylor Smith Consulting dated 6 May 2025 (Amended Modification Application).

9. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

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. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s34(3) of the LEC Act). I form this state of satisfaction on the basis that:

12. The applicant is the registered proprietor of the Subject Land and provided consent to the Modification Application when it was lodged with the respondent.

13. The Site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP 2014). Accordingly, dwelling houses are permitted with consent in the R2 zone.

14. For the purposes of s 4.55(2)(a) of the EPA Act, the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. I have formed this view for the following reasons as generally identified in the Statement of Environmental Effects prepared by ABC Planning dated September 2024 (SEE), including:

(a) the modifications do not significantly alter or intensify the approved use of the three storey dwelling house; (b) the design and appearance of the dwelling will remain substantially the same as that approved; (c) the minor extent of additional built form beyond that approved does not generate a built form representing a radical transformation of the approved dwelling; and (d) the modifications will not result in any additional adverse external amenity impacts, including overshadowing, visual or acoustic privacy impacts or view loss.

4. The parties agree that the requirements of s 4.55(2)(b) of the EPA Act are not relevant in this matter.
5. For the purposes of s 4.55(2)(c) of the EPA Act, the Modification Application was notified between 23 October and 7 November 2024 in accordance with the Woollahra Community Participation Plan and s 107 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). No submissions were received in response to the notification.
6. Consequently, the requirements in 4.55(2)(d) of the EPA Act are not relevant.
7. For the purposes of s 4.55(3) of the EPA Act, I am satisfied that the:

(a) matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the Amended Modification Application have been generally considered in the SEE and are reflected in the Agreed Conditions; and (b) the reasons given by the consent authority for the grant of the Original Consent (see “Statement of Reasons for Decision” in the Notice of Determination relating to the Original Consent) have been considered.

12. 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.

13. The Court notes that the applicant has amended Modification Application 12/2023/4 with the agreement of the respondent (pursuant to s 113(1) of the EPA Regulation) as the relevant consent authority to incorporate the following amended plans and additional information:

i*. Architectural plans, prepared by Studio Johnston*

| Drawing No. | Drawing Title | Revision | Date | | DA-001-001 | COVER | 5 | 06.05.2025 | | DA-001-002 | FINISHES SCHEDULE | 5 | 06.05.2025 | | DA-001-003 | NOTIFICATUION PLAN | 5 | 06.05.2025 | | DA-100-001 | SITE PLAN | 5 | 06.05.2025 | | DA-100-002 | SITE PLAN ANLAYSIS | 5 | 06.05.2025 | | DA-100-003 | DEMOLITION PLAN | 5 | 06.05.2025 | | DA-100-004 | EXCAVATION PLAN | 5 | 06.05.2025 | | DA-110-001 | LOWER GROUND | 5 | 06.05.2025 | | DA-110-002 | FROUND LEVEL | 5 | 06.05.2025 | | DA-110-003 | ENTRY LEVEL | 5 | 06.05.2025 | | DA-110—004 | ROOF LEVEL | 5 | 06.05.2025 | | DA-210-001 | ELEVATION NORTH | 5 | 06.05.2025 | | DA-210-002 | ELEVATION WEST | 5 | 06.05.2025 | | DA-210-003 | ELEVATION SOUTH | 5 | 06.05.2025 | | DA-210-004 | ELEVATION EAST | 5 | 06.05.2025 | | DA-310-001 | SECTION AA | 5 | 06.05.2025 | | DA-310-002 | SECTION BB | 5 | 06.05.2025 | | DA-310-003 | SECTION CC | 5 | 06.05.2025 | | DA-640-001 | GLAZING SCHEDULE | 5 | 06.05.2025 | | DA-640-001 | GLAZING SCHEDULE | 5 | 06.05.2025 | | DA-640-001 | GLAZING SCHEDULE | 5 | 06.05.2025 | | DA-640-001 | GLAZING SCHEDULE | 5 | 06.05.2025 | | DA-640-001 | GLAZING SCHEDULE | 5 | 06.05.2025 | | DA-640-002 | SYLIGHT SCHEDULE | 5 | 06.05.2025 | | DA-700-001 | FLOOR PLATE CALCULATION | 5 | 06.05.2025 | | DA-700-002 | LANDSCAPE AND PROVATE OPEN SPACE | 5 | 06.05.2025 | | DA-700-003 | 9.5M HEIGHT DIAGRAM | 5 | 06.05.2025 | | DA-700-004 | FSR + EXCAVATION CALCULATION | 5 | 06.05.2025 | | DA-710-001 | SHADOW DIAGRAMS – 21 JUNE AT 9AM | 5 | 06.05.2025 | | DA-710-002 | SHADOW DIAGRAMS – 21 JUNE AT 12PM | 5 | 06.05.2025 | | DA-710-003 | SHADOW DIAGRAMS – 21 JUNE AT 3PM | 5 | 06.05.2025 | | DA-800-001 | DRIVEWAY SECTIONS | 5 | 06.05.2025 |

ii. BASIX Certificate Number 1362263S_04 prepared by Taylor Smith Consulting dated 6 May 2025.

Orders

14. The Court orders that:

15. The appeal is upheld.

16. Development Consent No. 12/2023/1 is modified in the terms in Annexure A.

17. Development Consent No. 12/2023/1 as modified by the Court is Annexure B.

N Targett

Commissioner of the Court

Annexure A (179 KB, pdf)

Annexure B (627 KB, pdf)

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