Background
Double Bay Carlotta Pty Ltd applied for development consent to demolish existing structures and construct a six-storey residential apartment building with three units, associated car parking, and landscaping at 37 Carlotta Road, Double Bay. The site, zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014, is located within 800 metres of Double Bay Town Centre. The application was publicly notified and received 14 submissions raising concerns including building bulk, excessive scale, overshadowing, privacy impacts, and non-compliance with planning controls.
The council deemed the application refused, and the applicant appealed to the Land and Environment Court under section 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The court arranged conciliation conferences between 25 February and 5 May 2026, presided over by Acting Commissioner Pullinger.
The Court’s Holding
The parties reached agreement during conciliation on amended plans that resolved the council’s contentions. The applicant amended the development application to introduce an upper-level setback to Carlotta Street, mitigate cross-viewing and overshadowing impacts at the rear, and remove reliance on a lapsed parent development consent. The court found the amended application satisfied all applicable planning legislation and development standards, including State Environmental Planning Policy (Housing) 2021 requirements for building height (15.06m compliance with 17.5m limit) and floor space ratio (1.355:1 compliance with 1.5:1 limit).
The court upheld the applicant’s clause 4.6 written request justifying variance from the four-storey control under SEPP Housing section 176. The court accepted that due to steeply sloping site topography, the building never exceeds four storeys at any point on the site and presents to Carlotta Street as a three-storey building with a set-back upper floor. The exceedance of the storey count does not create additional adverse visual impacts, overshadowing, or privacy loss compared to the applicable height standard. The court upheld the appeal and granted development consent subject to conditions, ordering the applicant to pay the council $8,000 in costs thrown away by the amendment.
Key Takeaways
- A non-compliant storey count can be justified under planning variance provisions where the building complies with the underlying height control and site topography legitimately accounts for the discrepancy.
- Conciliation and design amendment during court proceedings can resolve development disputes and lead to consent where the amended scheme adequately addresses objector concerns.
- State-level planning policy (SEPP Housing) can override local height and size controls to facilitate medium-density residential development in identified outer areas.
- Heritage, flood, acid sulfate soils, and biodiversity compliance across multiple planning instruments must be separately addressed and satisfied.
Why It Matters
This decision demonstrates how planning courts can facilitate development through conciliation where parties agree on amended designs addressing legitimate concerns. The judgment resolves a tension between local storey controls and state-level medium-density housing policy by validating a variance justification based on site topography and visual presentation, even where the technical storey count exceeds local limits. This approach encourages applicants and councils to engage constructively rather than litigate rigidly, where genuine design improvements can address neighbourhood impacts.
For practitioners, the judgment illustrates the multi-layered compliance requirements for residential development: SEPP Housing provisions supersede local height and lot-size controls; multiple environmental planning policies must be addressed (Biodiversity, Resilience, Sustainable Buildings); and variance requests must convincingly demonstrate that non-compliance does not create additional adverse effects beyond those of the underlying permitted standard. The $8,000 cost order against the applicant reflects the procedural cost of amendment, a moderate penalty for substantial design revision during litigation.