Yu v Woollahra Municipal Council

Category: Principal judgment

Parties: Sandy Yu (Applicant)
Woollahra Municipal Council (First Respondent)
Hemmes Hermitage Pty Limited ATF the John Hemmes Family Trust (Second Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
S Hill (Solicitor) (First Respondent)
C Koikas (Second Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (First Respondent)
Addisons (Second Respondent)

File Number(s): 2025/193938

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by the Woollahra Local Planning Panel, of Sandy Yu’s request to modify development consent DA 478/2023/1. This consent is for the demolition of an existing dwelling and associated structures, and the construction of a new multi-storey dwelling with basement garage, new swimming pool, landscaping and site works located at 4 Graylind Place, Vaucluse NSW 2030. This modification application, DA 478/2023/3 seeks approval for internal and external modifications including the reinstatement of the first floor level, which was required to be deleted by conditions of consent.

2. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference before me, as Duty Commissioner, under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 3 October 2025. I presided over the conciliation conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the amended modification application. I note that there is an second respondent in these proceedings, Hemmes Hermitage Pty Limited ATF the John Hemmes Family Trust (intervenor), who has been given leave to participate in these proceedings as if they were a party on the issue of heritage only.

4. As part of this agreement, and with the consent of the intervenor, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Woollahra Municipal Council as the respondent has consented to Ms Yu amending the application to rely on revised architectural, landscape and stormwater plans, and supporting documents. These result in the following amendments:

5. Removal of the proposed additional level;

6. Increased bulk on lower floors to facilitate an additional bedroom, previously sought on the additional level;

7. Update to the landscape plans to introduce tree species which would not grow above 3m;

8. Managed services and structures on the roof to limit their height;

9. Updated stormwater plans;

10. Updated BASIX certificate.

11. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the development consent.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified to the Court and from this, I note the following points.

13. I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted pursuant to s 4.55(2)(a) of the EPA Act. In this regard I note that the development remains a single dwelling of the same number of storeys and appearance from the street. The modification slightly increases the gross floor area and height, but in such a way that the impacts on adjoining properties are minimal. On this basis I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

14. The modification application is not integrated development. The original consent does not contain any conditions of consent resulting from any concurrence, or requirements for compliance with general terms of approval, as imposed by a Minister, public authority or approval body pursuant to s 4.55(2)(b).

15. The modification application was adequately notified from 16 April to 1 May 2025. Six submissions were received during this time, and I accept the parties’ submission that the application as amended adequately responds to the issues raised, in accordance with EPA Act s 4.55(2)(c) and (d).

16. Based on the amended application and the parties’ submission, I am satisfied that all matters referred to in s 4.15(1) of the EPA Act, as are of relevance to the development the subject of this application, have been considered, as required by s 4.55(3) and that all jurisdictional prerequisites have been met. The modification application does not alter the compliance of the proposed development with any relevant planning instrument, as summarised below.

Woollahra Local Environmental Plan 2014

11. The site is zoned R2 Low Density Residential, within which development for the purpose of a dwelling house is permissible. The proposed development is consistent with the objectives of this zone.

12. The building height complies with the maximum height of 9.5m set out in Woollahra Local Environmental Plan 2014 (WLEP) cl 4.3, and the maximum floor space ratio of 0.5:1 set out in cl 4.4E.

13. Pursuant to WLEP cl 5.10, the site is not a heritage item nor within a heritage conservation area, however is in the vicinity of various heritage items. Consideration has been given to the impacts of the development on these items. From the parties’ joint submission and the amended application, I accept that the impact of the proposed development on the heritage significance of these items is acceptable.

14. The modification application proposes minor internal alterations to the basement that result in small amounts of additional excavation however the parties submit, and I accept, that this does not result in any further impact beyond that which was considered in relation to the excavation proposed in the original application, pursuant to WLEP cl 6.2.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. No change of use is proposed and there is no additional information that arises in relation to contamination, and as such I am satisfied that, in terms of contamination, the site remains suitable for its continued residential use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The site is located within the Sydney Harbour Catchment and accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Part 6.2 requires the consent authority to be satisfied as to various matters in relation to:

17. Water quality and quantity (s 6.6);

18. Aquatic ecology (s 6.7);

19. Flooding (s 6.8);

20. Recreation and public access (s 6.9); and

21. Total catchment management (s 6.10).

22. Based on the amended stormwater plans and the parties’ submission, I accept that the modification application does not alter the compliance of the proposed development with any of the relevant requirements of Pt 6.2 of the SEPP BC.

Environmental Planning and Assessment Regulation 2021 (NSW)

18. An amended BASIX certificate was filed with the application, which relates to the proposed development as amended in accordance with the requirements of s 100(3) of the EPA Regulation.

Conclusion

19. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

20. The Court notes:

21. Woollahra Municipal Council, 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. 478/2023/3 in accordance with the documents set out below:

(i) amended architectural plans Rev P2 dated 12 August 2025 prepared by Smith Tzannes Architects (the ‘Final Plans’); (ii) amended stormwater plans rev B dated 9 September 2025 prepared by ITM design (the ‘SW Plans’); (iii) BASIX Certificate 1426071S_05 prepared by Certified Energy dated 17 October 2025 (the ‘Basix Certificate’)

21. The Court orders:

22. The appeal is upheld.

23. Application DA 478/2023/3 to modify Development Consent DA 478/2023/1 granted by the Woollahra Local Planning Panel on 5 September 2024 for the demolition of existing dwelling and associated structures and the construction of a new multi-storey dwelling with basement garage; new swimming pool, landscaping and siteworks at 4 Graylind Place, Vaucluse NSW 2030 is approved.

24. Development Consent DA 478/2023/1 is modified in the terms set out in Annexure A.

25. Development Consent DA 478/2023/3 as modified by the Court is Annexure B.

E Washington

Commissioner of the Court

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Annexure A.205 KB.pdf

Annexure B.589 KB.pdf