Yu v Woollahra Municipal Council

Texts Cited: Land and Environment Court Practice Note – Class 1 Residential Development Appeals

Category: Procedural rulings

Parties: Sandy Yu (Applicant)
Woollahra Municipal Council (Respondent)
Hemmes Hermitage Pty Limited atf the John Hemmes Family Trust (Applicant for Joinder)

Representation: Counsel:
Dr J Smith (Applicant)
F J Patag, solicitor (Respondent)
I Hemmings SC (Applicant for Joinder)
Solicitor:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)
Addisons (Applicant for Joinder)

File Number(s): 2025/00193938

Publication restriction: Nil

JUDGMENT

1. By notice of motion filed 21 July 2025, the intervener, Hemmes Hermitage Pty Limited atf the John Hemmes Family Trust (‘Hemmes’), seeks to be joined as a party to these Class 1 proceedings pursuant to s 8.15(2) of the Environment Planning and Assessment Act (‘EPA Act’) and, in the alternative, be granted leave to intervene in the proceedings pursuant to s 38(2) of the Land and Environment Act Court Act (‘Court Act’) consistent with the decision in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313.

2. The proceedings involve an appeal commenced by Sandy Yu (‘Yu’) against Woollahra Municipal Council’s (‘Council’) refusal to approve a modification application No. DA478/2023/3 (‘Modification Application’) to development consent No. DA478/2023/1 (‘Original Consent’) relating to a property at 4 Graylind Place, Vaucluse (‘Site’). Hemmes is the owner of an adjoining property, 20B New South Head Road, Vaucluse, a heritage item listed in the Woollahra Local Environmental Plan (‘WLEP’) which is known as “Kainga”.

3. Yu opposes the relief sought in the motion and Council neither consents nor opposes the motion.

Background

4. On 15 December 2023, Development Application DA 478/2023/1 (‘Original DA’) was lodged by Yu with Council seeking approval for demolition of existing dwelling and associated structures and the construction of a new multistorey dwelling with basement garage; new swimming pool, landscaping and siteworks at the Site.

5. Hemmes objected to the Original DA on heritage and view loss grounds.

6. On 5 September 2024, the Original DA was approved by the Woollahra Local Planning Panel (‘Panel’). The Panel imposed several conditions including the deletion of the upper (first floor) level due to the view loss that would be occasioned to surrounding properties.

7. On 24 March 2025, Yu lodged application DA 478/2023/3 to modify the Original DA granted by the Panel on 5 September 2024 (being the Modification Application). This modification effectively sought the reinstatement of the first floor level.

8. On 21 May 2025, Yu commenced this appeal against what was then Council’s deemed refusal of the Modification Application.

9. On 27 June 2025 Council filed its Statement of Facts and Contentions which raised the following contentions:

(a) Contention 1: View loss and visual intrusion impacts on surrounding properties (b) Contention 2: Building Envelope (c) Contention 3: Excessive Excavation (d) Contention 4: Insufficient/Inadequate information.

10. On 2 July 2025, the solicitors for Hemmes wrote to the Panel submitting that the Modification Application is not “substantially the same development” as the Original DA as required by 4.55(2) of the EPA Act, and, as such, it should be refused. On that date Hemmes’ expert town planner, Robert Chambers, also wrote to the Panel objecting to the Modification Application on various grounds.

11. On 3 July 2025, the Panel refused the Modification Application on the grounds that the proposal for modification would not be the same, or substantially the same development as the development for which consent was originally granted within the meaning of s 4.55(2) of the EPA Act.

12. As a result of the Panel’s formal refusal (and its reasons), Council sought and was granted leave to file an amended Statement of Facts and Contentions which deleted certain of the above noted earlier contentions and reduced the contentions to:

CONTENTION 1 - NOT SUBSTANTIALLY THE SAME

1.The development to which the consent*, as sought to be modified, is not the same or substantially* the same development as the development for which consent was originally granted within the meaning of s4.55(2) of the EP&A Act 1979 due to the:

a. Qualitive differences between the proposed modified development against the approved originally approved development.

b. Consequences such as the environmental impacts, namely view affection, of carrying out the proposed modified development compared to the original approval development.

CONTENTION 4 - Insufficient/Inadequate information

Inadequate information has been submitted to enable full and accurate assessment of the Proposal against the relevant considerations pursuant to Section 4.15 of the EPA Act as detailed below.

Particulars

1. View Analysis

In order to comprehensively distinguish and assess the extent of private view impacts/visual intrusion caused by the proposal, a view analysis undertaken from surrounding private residences included from:

a. 20B New South Head Road, Vaucluse

b. Unit 1, of 22 New South Head Road, Vaucluse

c. Unit 2*,* of 22 New South Head Road, Vaucluse

For clarity, I will refer to these two contentions as “Council’s Contentions”.

Evidence

13. Hemmes read the affidavit of its town planner, Robert Chambers, sworn 21 July 2025 and the affidavit of its heritage consultant, Stephen Davies, affirmed 24 July 2025. Yu read the affidavit of his solicitor, Anthony Boskovitz, sworn 23 July 2025 and the exhibit thereto.

14. Mr Chambers and Mr Davies provide evidence on behalf of Hemmes primarily in relation to the heritage impact of the proposed modification on Kainga. Mr Chambers expresses concerns that Council’s Contentions do not include contentions that the proposed modification will have a deleterious effect upon the heritage significance of Kainga and refers to the expert heritage advice of Kerime Danis, and to the “severe” to “devastating” view loss that will be occasioned as opined by John Aspinall of Urbaine Design Group who prepared a visual impact assessment.

15. Mr Boskovitz, on behalf of Yu, deposes to the detailed background of the material and, in particular, Council’s consideration of the earlier DA which as noted above was approved by the Panel on 5 September 2024 (despite an earlier recommendation for approval in Council’s internal assessment report). Mr Boskovitz details the consideration by the Panel and the objections received from BBC Consulting on behalf of Hemmes which, along with a further assessment report from Urbaine Design Group Pty Ltd (‘Urbaine’), were summarised in a further assessment report prepared by Council which was then sent to the Panel which received further submissions from BBC Consulting on behalf of Hemmes, as well as correspondence from Hemmes’ solicitors.

16. Mr Boskovitz’s affidavit contains further material including a statement of environmental impact prepared by GSA Planning, Yu’s town planner, and a report of AE Design criticising the visual impact report prepared by Mr Aspinall. In particular, Mr Boskovitz responds to material in the affidavit of Mr Chambers. As I will note later in the judgment, he points in detail to material before the Panel where a number of the matters which apparently remain of concern to Mr Chambers (and Hemmes itself) were dealt with in Council’s assessment report in relation to the Modification Application.

17. Mr Boskovitz deposes that the Site is not a listed item in the WLEP, nor is it located in a heritage conservation area, however, as is common ground, the Hemmes property (Kainga) is a listed item.

Submissions

Hemmes position

18. Hemmes proffered a proposed statement of facts and contentions which it submits it will rely upon if it is successful in the motion. In summary, it provides for six discrete contentions, being:

19. Contention 1 - Heritage Impacts.

20. Contention 2 - View Loss.

21. Contention 3 - Substantially the same development.

22. Contention 4 - Consideration of reasons given by Council for the grant of the Original Consent.

23. Contention 5 - Modification proposal is inconsistent with the character of the area.

24. Contention 6 - Public Interest.

25. Contention 1 (Heritage Impacts) contains detailed particulars listing ‘impacts’ for the proposal which have been prepared by Hemmes’ town planner and expanded by Mr Davies, Hemmes’ heritage consultant.

26. Hemmes submits that, pursuant to s 8.15(2)(a) of the EPA Act, if it is joined as a party to these proceedings, it will raise the issues noted in its proposed contention critical to the determination of this appeal, which, if Hemmes were not joined, would not likely be sufficiently addressed (or at all).

27. Hemmes’ position is that, pursuant to s 8.15(2)(b) of the EPA Act, given that Kainga is a heritage listed property under the WLEP and given the existing public views of Kainga from Sydney Harbour, it is in the interests of justice and in the public interest that Hemmes is joined as a party; and that if the Court is not minded to make an order pursuant to s 8.15(2) of the EPA Act, it is relevant to the exercise of the Court’s discretion to make an order allowing Hemmes to intervene as if it were a party.

28. Hemmes submits, first, that one primary issue which will not be addressed if it is not joined as a party is the heritage impacts of the Modification Application on Kainga as Council’s Contentions simply do not raise any issue in regard to the heritage impact of the proposed development on Kainga.

29. Hemmes points to Kainga’s Statement of Significance which provides that Kainga is an “[a]esthetically rare” Federation Queen Anne building which has “historic and social significance” and that the location of Kainga was chosen by the original owner “for the views offered of [Sydney] Harbour”.

30. Hemmes submits that the earlier Heritage Impact Statement prepared in November 2023 on behalf of Yu for the Original DA does not address Kainga’s Statement of Significance and did not adequately consider impacts on the heritage significance of the place and contains several errors including, first, mistakenly referring to Kainga as being sited at 12 Wentworth Road; second, not including Kainga in the list of local heritage items; third, including commentary on Kainga with the wrong street address; and fourth, mistakenly referring to Kainga as having been built in 1926 rather than 1906.

31. Secondly, Hemmes submits that the issue of view loss will not be sufficiently addressed (or at all) if Hemmes Hermitage is not joined as a party to the proceedings or if leave to intervene is not granted. And further, that Council’s Contentions do not raise any issue as regards the loss of public views from Sydney Harbour to Kainga because neither Yu’s Heritage Impact Statement dated November 2023 nor Council’s internal heritage referral has considered the impact of the proposal on Kainga as seen from Sydney Harbour, which is required pursuant to cl B3.5.3(C1)(b) of the Woollahra Development Control Plan 2015 (‘DCP’), and although Contention 4 (of Council’s Contentions) provides that inadequate information has been submitted to enable assessment of the extent of “private view impacts/visual intrusion” caused by the proposal on certain properties including Kainga, Council’s Contentions do not include a specific contention directly addressing the view loss impacts.

32. Hemmes points to the opinion of John Aspinall of Urbaine (whose opinion is attached to the affidavit of Mr Chambers) who opines that the view impact of the Modification Application varies from “moderate” through to “severe-to-devastating”. And further, Council’s Contentions do not raise the proposed development’s non-compliance with the view sharing principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23.

33. Thirdly, Hemmes submits that if it is not joined as a party to these proceedings, or if leave to intervene is not granted, another issue that will not be addressed is the requirement under section 4.55(3) of the EPA Act that the Court take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified in circumstances where those “reasons” required (amongst other things) the deletion of the upper (first) level in its entirety to address view loss concerns.

34. Fourthly, Hemmes submits that the Modification Application’s inconsistency with the surrounding pattern of development will not be sufficiently addressed because Council’s Contentions do not include a contention addressing the fact that it is not characteristic in Vaucluse for neighbouring dwellings to be only 1.5m from a rear boundary.

35. Fifthly, Hemmes further submits that the public interest impacts of the Modification Application will also not be sufficiently addressed because Council has not included a contention raising the public interest and, in particular, concerns raised by objectors.

Yu’s position

30. Yu submits that Hemmes has had ample opportunity for appropriate involvement in the assessment of the Modification Application at each of its stages, namely by way of, first, written objections from its planning consultant, BBC Consulting (through Mr Chambers), submitted during the Council’s notification period of the Modification Application; second, further written submissions provided to the Panel for the purpose of the Panel’s consideration including further correspondence from Hemmes’ solicitors and further separate submissions from Mr Chambers.

31. Yu submits that Hemmes will have the opportunity to make further submissions before the Commissioner at the scheduled s 34 conference and also address the Court pursuant to p 11 of the Court’s Practice Note – Class 1 Residential Development Appeals (‘Practice Note’), and clauses 8 and 9 of the Land and Environment Court’s inspection policy, in the event that the matter proceeds to hearing. Further, Hemmes’ submissions will be put before any hearing by a Commissioner as they will be included in Council’s Bundle of Documents required to be filed in the proceedings and are, in any event, summarised at pp 12-13 of the Council’s Modification Application Assessment Report.

32. Yu submits that Hemmes is simply unable to raise any issue that should be considered but is not likely to be sufficiently addressed if Hemmes is not joined as a party and submits that Hemmes’ application should fail the test pursuant to s 8.15(2)(a) of the EPA Act for a number of reasons.

33. First, the suggested concern in relation to heritage (Hemmes’ Contention 1) is misplaced because there is no requirement to “comply” with certain objectives or aims in the WLEP. Further, cl 5.10(5)(c) of the WLEP does not have the effect apparently contended by Hemmes as cl 5.10(5)(c) provides no more than a discretionary opportunity for the Council to obtain a heritage study.

34. Second, in any event, a heritage study is and will be before the Court and Yu notes that the Site is not a heritage item and nor is it in a heritage conservation area which would otherwise trigger the mandatory requirements of cl 5.10(4) of the WLEP.

35. Third, the “views” which Hemmes alleges are affected by the development are views “from Sydney Harbour to Kainga” in circumstances where those are simply not views to which cl B3.5.3(C1)(b) of the DCP applies and there is no particular identified which gives rise to the nature of the impacts particularised under Hemmes’ proposed Contention 1.

36. For the above reasons, Yu submits that heritage concerns per se, which although not specifically raised in the Contentions, do not warrant joinder, and in any event, such concerns can be “sufficiently addressed” by way of submissions already made to Council and the relevant reports, including Council’s assessment reports, would be provided to the Court in any appeal and will be considered by the Court in determining the appeal.

37. In relation to Hemmes’ contention regarding view loss (Hemmes’ Contention 2), this is already “squarely covered” by Council’s Contentions 1 and 4, and view loss is also clearly raised in the public submissions which will also be considered by the Court at hearing. As such, there is no need for any further or separate “issue” and it could not be said that any issue in relation to view loss will not be sufficiently addressed if Hemmes is not joined.

38. Yu further submits that Hemmes’ concerns (and has proffered contentions) in relation to other matters, including whether the proposal is substantially the same development as required in s 4.55(2) and/or whether s 4.55(3) of the EPA Act which requires a consent authority to take into account reasons given by the consent authority for the grant of the consent sought to be modified, are incorrect. Council has raised a contention in relation to s 4.55(2) and the lack of any explicit mention of s 4.55(3) in Council’s assessments does not mean that the Court will not undertake this requisite consideration. There is no danger that the “reasons” given by Council for the Original Consent will not be considered at any appeal hearing as the original reasons will be tendered to the Court in Council’s Bundle of Documents.

39. Yu submits that Hemmes’ alleged concern in relation to “character” (in relation to setbacks) because the proposed development will be “only 1.5m from a rear boundary” contains a fundamental error in that the relevant boundary referred to by Hemmes is in fact a side boundary in relation to which the DCP prescribes a standard of 1.5m. As such, this is simply not an issue.

40. Yu submits that Hemmes’ concerns in relation to public interest are not compelling as the Court, consistent with the Practice Note, will hear from the resident objectors and will in any event consider the public interest. The fact that the public interest is not referred to as a contention does not mean it will not be considered by the Court.

41. In the above circumstances, Yu submits that joinder would not be granted on any of the bases otherwise suggested or alleged by Hemmes and allowing joinder will simply result in additional legal representation being involved in the proceedings which would lead to delay, increased costs and possibly the loss of the hearing which has been set down for one hearing day.

42. In summary, Yu submits that Hemmes does not raise any issue which has not already been identified by Council and allowing or permitting joinder would be inconsistent with the principles usually adopted by this Court. Moreover, Yu submits that the Court would take into account the principle that mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to a proposal to be joined as a party so as to be able to continue arguing the person’s position in circumstances where the person has exercised an opportunity to be heard by way of public submissions, and notes that if Hemmes will be in a position to make submissions at the commencement of the hearing of these proceedings, so will any other party who has made submissions.

Consideration

43. Section 8.15(2) of the EPA Act relevantly provides:

(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that—

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

44. It is trite that pursuant to s 8.15(2)(a) of the EPA Act, in order to grant leave to a person to be joined to proceedings, the Court must form the opinion that the joinder applicant is able to raise an issue that should be considered on the appeal but would not likely be sufficiently addressed if the joinder applicant was not joined. Alternatively, under s 8.15(2)(b) the Court can grant joinder if it forms the opinion that it is either in the interests of justice or in the public interest that the joinder applicant be joined as a party to the appeal.

45. The principles which I am to adopt are well-known and not repeated and have been frequently addressed in this Court: Optus Mobile Pty Ltd v Central Coa**st Council [2025] NSWLEC 74 at [20]; Jon Garling v Northern Beaches Council [2022] NSWLEC 102 at [47]; Spencer v Kiama Municipal Council [2024] NSWLEC 80 at [31].

46. Of particular relevance to a number of the matters raised in this motion are the comments of Preston CJ of LEC in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2007) 159 LGERA 361 (‘Morrison Design’), where, although considering the similarly worded former s 39A of the EPA Act, his Honour stated:

“…

[52] Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.

[53] A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.

[54] The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.

…”

47. I find that Contentions 2, 3, 4, 5 and 6 in Hemmes’ proposed contentions, except to the extent that ‘view loss’ may relate to heritage concerns, do not raise issues that should be considered in relation to the appeal but would not be considered. My reasons reflect the submissions made by Yu which I have noted in summary form at [37]-[39] as well as the material and commentary in Mr Boskovitz’s affidavit at pars [32]-[39], and [62](c)-(e), which I do not repeat.

48. Despite this finding, I remain concerned regarding the question of heritage impact and have closely reviewed the detailed evidence and reconsidered the parties’ submissions. I am aware of the caution, and indeed specific reluctance, of the Court to allow the intervention in circumstances where an intervener has “participated” as provided in the EPA Act. However, in considering the heritage issue, I am aware of the somewhat unusual history of the Panel’s earlier consideration of the Original DA, that the Original DA was first recommended for approval by Council’s internal assessment and then the Panel found that as a result of “view loss” concerns (and the height of a balustrade wall and certain proposed vegetation), a condition should be imposed completely removing the then proposed first level.

49. Remaining conscious of the comments of Preston CJ of LEC in Morrison Design at [53]-[54], and noting the primary remaining objection of Council (as per Council’s Contentions) that the proposal as presently configured will not result in substantially the same development (in accordance with the requirements in s 4.55(2) of the EPA Act) and that this issue may be determinative in the proceedings, I consider that Hemmes should be permitted to participate in the hearing – confined to one specific issue. That is, whether the Modification Application should be refused because it will have an unacceptable impact on the heritage significance of Kainga, and I find that this specific issue, while it would be raised by at least one objector, would not likely be “sufficiently” addressed if Hemmes was not permitted to participate.

50. While I accept, as made clear in the affidavit Mr Boskovitz, that Hemmes has had a number of opportunities to put its position and raise matters in relation to the effect upon Kainga, I remain conscious and concerned that there is no reference at all to “heritage” in Council’s Contentions.

51. I also note the Heritage Impact Assessment (prepared in November 2023 on behalf of Yu) that accompanied the Original DA contained certain mistakes and I remain conscious, as the Court will be if the matter proceeds to hearing, that the Site is not itself a heritage item, nor is it in a heritage conservation area. However, and not without some concern, while I consider that view loss simpliciter (that is, not related to heritage concerns) will clearly be considered as part of Council’s first contention and that the evidence and earlier consideration of that aspect will be before the Court (at least in Council’s bundle of documents), the question is whether the heritage concerns will be “sufficiently” addressed. I find that unless Hemmes is permitted to participate in the proceedings this issue will not be sufficiently addressed.

52. I accept Hemmes’ submission that the heritage impact issue is not raised in the Panel’s reasons nor in the Council’s Contentions which have not considered this issue, nor is it likely going to be sufficiently addressed if Hemmes is not able to participate at the hearing of these proceedings because Council may simply assess the Modification Application by reference to the “not substantially the same development” ground without regard to the impact on views or heritage impacts of the Modification Application (Tcpt (25 July 2025), p 7(7-26)).

53. In circumstances where, first, there is no specific assessment of the heritage impact in relation to Kainga in Council’s Contentions; second, the Heritage Impact Statement prepared on behalf of Yu has not adequately considered the heritage significance of Kainga by containing a number of errors and failing to reference Kainga’s Statement of Significance; and third, neither Yu’s Heritage Impact Statement nor Council’s internal heritage assessment (although raising “Heritage Conservation”) has addressed the impact of the proposal on Kainga as seen from public open space areas including from ridgelines to Sydney Harbour (as provided for in cl B3.5.3(C1)(b) of the DCP), I find that the heritage impacts of the proposal is an issue that should be considered in the proceedings but will not likely be sufficiently addressed if Hemmes is not allowed to participate in these proceedings.

54. I express no view in relation to the strength of any argument in relation to the effect of the Modification Application on the heritage significance of the Kainga, nor do I express any view in relation to any other issue.

55. For completeness, in response to the submission of Yu (noted at [41]), I do not consider that there has been delay on the part of Hemmes in bringing the motion.

56. For the reasons above, Hemmes should be permitted to participate, restricted to the specific issue as to whether the proposed modification should be refused because it will have an unacceptable impact on the heritage significance of Kainga.

57. As such, I consider that the parties should be directed to attempt to agree on Hemmes’ further involvement in the proceedings based upon my findings above and if agreement cannot be reached, I will make appropriate orders.

58. On the material presently before the Court, and unless either party wishes to make further submissions, I do not consider that any order should be made in relation to costs of the present motion. The proceedings will be listed for directions by arrangement with my Associate.

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