YARRANABBE VENTURES PTY LIMITED v Woollahra Municipal Council [2025] NSWLEC 1630

Parties: YARRANABBE VENTURES PTY LIMITED (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
H Grace (Applicant)
R Bullmore (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/154938

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought in accordance with s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that seeks to modify development consent DA7/2024/1 granted by the Court on 2 October 2024 for development at 77-83A Yarranabbe Road, Darling Point. (the Original Consent).

2. In summary, modification application DA7/2024/3 proposes internal and external modifications to the proposed development that are largely characterised as changes arising from improved services and fire safety.

3. The Modification Application was filed with the Court, by the applicant in these proceedings, Yarranabbe Ventures Pty Limited (Yarranabbe), on 22 April 2025.

4. The Council notified the proposal to residents from 21 May – 5 June 2025, in accordance with the Woollahra Community Participation Plan 2023, in response to which 5 submissions were received.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was first held on 11 August 2025. I presided over the conciliation conference.

6. At the conciliation conference, the parties agreed that the Modification Application has resolved the Council’s contentions, and that the Modification Application may be approved subject to agreed conditions of consent.

7. A signed agreement was submitted to the Court on 25 August 2025, in accordance with s 34(10) of the LEC Act.

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. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

10. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

Jurisdictional Preconditions

Environmental Planning and Assessment Act 1979 (NSW)

11. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

12. The Original Consent approved the demolition of two existing single dwellings and a residential flat building, construction of a new residential flat building with strata subdivision, comprising eight residential units across five levels and 18 car parks, and associated works.

13. The extent of change now proposed is set out in a Schedule of changes prepared by the architect, Tzannes dated 15 April 2025, and in a letter prepared by GSA Planning dated 16 April 2025 (GSA Letter) that also identifies certain conditions of consent that are sought to be modified.

14. The development as proposed to be modified remains consistent with the description of the Original Consent above.

15. I am satisfied the development as proposed to be modified by the Modification Application will remain substantially the same as the development originally granted by the Consent prior to any modification by virtue of the following reasons:

16. The development remains residential apartment development, comprising eight residential units across five levels and 18 car parks, and associated works.

17. Modification to the internal layout of the building on each level is minor and the proposed modifications to the building envelope and openings are agreed by the parties to be minimal and do not significantly impact the amenity of neighbouring properties, with the overall envelope remaining largely consistent with the approved design, according to the GSA Letter (p 22).

18. The height of the built form is proposed to increase by 200mm from a Reduced Level (RL) of 20.950 to 21.150, and the mechanical enclosure to the roof increases to a maximum RL of 21.500.

19. There is additional excavation to the basement that the parties consider to be minor, and additional floor space of 108.15m².

20. I have also considered the submissions arising from the notification of the Modification Application at [4] in accordance with s 4.55(2)(d) of the EPA Act. The matters set out in the submissions received by the Council are substantially to do with view impact. The Council is satisfied that the proposed modification does not result in greater environmental impacts than the previously advertised application, in accordance with s 23 of Sch 1, Part 2, of the EPA Act. Accordingly, by reference to the Woollahra Community Participation Plan, renotification of the Modification Application is not required.

21. Section 4.55(3) of the EPA Act requires the consent authority to consider those matters in s 4.15(1) of the EPA Act that are of relevance; and the reasons given by the consent authority for the grant of the original consent that is sought to be modified.

22. The parties agree that the reasons for the granting of development consent are set out in the judgment of Yarranabbe Ventures v Council of the Municipality of Woollahra [2024] NSWLEC 1613.

23. After a consideration of those reasons, the parties agree that the Modification Application adequately resolves the contentions.

24. Accordingly, I am satisfied that the relevant matters specified in s 4.15(1) of the EPA Act have been considered and addressed by the Modification Application.

Environmental Planning and Assessment Regulation 2021 (NSW)

21. The parties agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) have been considered and are satisfactorily addressed.

22. The Modification Application has been made by the owners of the site, who provide written consent.

23. An amended design statement has been provided in accordance with s 102 of the EPA Regulation. The statement, authored by Alec Tzannes (Arch Reg No 4174) confirms that the development, as modified, complies with the design quality principles and objectives in Parts 3 and 4 of the Apartment Design Guide, and that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development. As such, I am satisfied that the development is consistent with the design principles of the State Environmental Planning Policy (Housing) 2021 and has been designed with regard to the Apartment Design Guide.

24. In respect of the requirement for a BASIX Certificate under s 100(3) of the EPA Regulation, the parties note the Modification Application is accompanied by an amended BASIX Certificate No 1729929M_04 dated 15 April 2025, which has been provided to the Council as part of the amended Modification Application.

25. The amended BASIX Certificate confirms the requirements under State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) are satisfied, including the quantifying of embodied emissions attributable to the development, in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. I am satisfied that the modification now proposed does not alter the satisfaction achieved in the Original Consent that the site is suitable for the development proposed in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

27. On the basis of the Civil Engineering Design Report prepared by Henry & Hymas dated April 2025, I am likewise satisfied that the modification now proposed does not alter the satisfaction achieved in the Original Consent that the effect on the quality of water entering Sydney Harbour 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, being an opinion of satisfaction required by s 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021. In particular, I note filtration devices are proposed, as is a 10,000L rainwater tank.

Woollahra Local Environmental Plan 2014

28. As the proposal remains for a residential flat building, the development is permitted with consent in the R3 Medium Density Residential zone, according to the Woollahra Local Environmental Plan 2014 (WLEP).

29. The proposal as sought to be modified exceeds the height permitted under the height of building standard at cl 4.3, and also exceeds the floor space ratio permitted under cl 4.4. However, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the WLEP does not apply to modification applications.

30. The parties agree, and I am satisfied, that the proposal as now sought to be modified is consistent with the relevant objectives at cll 4.3 and 4.4 of the WLEP. In particular, I accept the enclosure for the rooftop services is located forward on the site, such that the enclosure will be largely viewed against the rooftop as its backdrop when viewed from the properties located on the higher side of Yarranabbe Road.

31. The parties are agreed that the modification proposed does not adversely impact the heritage significance of heritage items located in close proximity to the site, and a statement to this effect, prepared by City Plan Heritage dated 14 April 2025, concludes the same consistent with cl 5.10 of the WLEP.

32. A statement prepared by Douglas Partners dated 16 April 2025 confirms the Geotechnical Investigation dated December 2023 remains relevant and its findings and recommendations unchanged by the modifications proposed in respect of geotechnical and groundwater, in accordance with cl 6.2 of the WLEP.

Conclusion

33. 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.

34. 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.

35. The Court notes that:

36. The Council of the Municipality of Woollahra, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Modification Application of Development Consent No. DA7/2024 in accordance with the documents set out in Annexure C.

37. The amended documents in Annexure C were filed with the Court on 25 August 2025.

Orders

36. The Court orders that:

37. The application is granted.

38. Development Consent DA7/2024/1 is modified in the terms set out in Annexure ‘A’.

39. Development Consent DA7/2024/3 as modified by the Court is set out in Annexure ‘B’.

T Horton

Commissioner of the Court

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Annexure A (347 KB, pdf)

Updated annexure B (953 KB.pdf)

Annexure C (131 KB, pdf)

Amendments

30 September 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Updated Annexure B."