Background
Helen Elser appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) from Woollahra Municipal Council’s refusal of DA109/2025/1. The application concerned demolition works, alterations and additions to an existing semi-detached dwelling, a rear addition and stormwater works at 13 Robertson Place, Watsons Bay.
The site is in the Watsons Bay Heritage Conservation Area and within the Sydney Harbour catchment and the Foreshores and Waterways Area. The existing dwelling already exceeded the applicable 8.2-metre height standard. During a Court conciliation conference, the parties agreed to amended plans that reduced height and bulk, introduced a roof terrace within the existing building envelope, refined heritage treatment, and altered other design and stormwater elements.
The Court’s Holding
Acting Commissioner Starr upheld the appeal and granted development consent for the amended proposal, subject to the conditions in Annexure A. The Court accepted the parties’ agreement under s 34AA of the Land and Environment Court Act 1979 (NSW) after being satisfied that it was a decision the Court could make in the proper exercise of its functions.
The Court found the applicant’s cl 4.6 request to vary the Woollahra Local Environmental Plan 2014 height standard acceptable. Although parts of the amended works and roof terrace remained above the 8.2-metre limit, the maximum existing ridgeline of 11.89 metres was unchanged. The Court accepted that the height-standard objectives were achieved and that sufficient environmental planning grounds justified the variation, including minimal visual change and acceptable effects on heritage, views, privacy and solar access.
Key Takeaways
- A Class 1 development appeal may be resolved through a conciliation agreement where the Court is satisfied it has jurisdiction to make the agreed decision.
- An existing height exceedance does not prevent consent where the cl 4.6 preconditions are met and the amended works do not create unacceptable impacts.
- Heritage, harbour-catchment and coastal considerations were addressed through the amended design, expert material and consent conditions.
Why It Matters
The decision illustrates the practical role of Court conciliation in resolving planning disputes through amended plans and agreed conditions. It also confirms that, where the statutory test is met, a height variation can be supported by consistency with the development standard’s objectives rather than strict numerical compliance.
The Commissioner expressly noted that, after finding the parties’ agreement was a decision the Court could properly make, s 34(3) required the Court to dispose of the proceedings accordingly; the Court did not independently assess discretionary merits issues under s 4.15.