Background
399 NSHR Developments Pty Ltd appealed the deemed refusal of its development application for a consolidated commercial development in Double Bay. The proposal expanded an earlier Court-approved development by incorporating two adjoining sites, demolishing existing buildings, relocating a substation to the basement, and constructing a five-storey commercial building with ground-floor retail, office space and a roof terrace.
At a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed on amendments and conditions. The amendments reduced the proposal from six storeys to five, altered the building form and light well, reduced and centralised the roof terrace, and addressed traffic, stormwater, acoustic, geotechnical and other issues. Objectors had raised concerns including excessive height and bulk, privacy, views, traffic and excavation impacts.
The Court’s Holding
Acting Commissioner Pullinger upheld the appeal and granted consent to the amended development application, subject to Annexure A conditions. The Court held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions under s 34(3), after being satisfied that the applicable planning and jurisdictional requirements had been met.
The Court accepted written requests under cl 4.6 of the Woollahra Local Environmental Plan 2014 to vary the 18.1-metre height limit and the 2.5:1 floor-space-ratio limit. The amended project proposed a maximum height of 24.42 metres and an FSR of 3.64:1. The Court found the variations adequately justified because the amended building was compatible with the streetscape and desired future character, and would not cause unreasonable visual, overshadowing, view, privacy or other amenity impacts.
Key Takeaways
- A conciliated agreement may be implemented where the Court is satisfied it could properly grant the consent.
- The Court approved significant height and FSR departures after finding the amended design met the relevant planning objectives.
- The applicant was required to pay the Council $18,000 in agreed costs thrown away by the amendment to the application.
Why It Matters
The decision illustrates how design amendments made during Land and Environment Court conciliation can resolve contested planning issues and support approval of a substantially revised project. It also confirms that numerical departures from height and FSR controls may be approved where the statutory variation test is met and the resulting development is found acceptable on its site and in its context.