Background
Fyve Developments appealed Woollahra Municipal Council’s refusal of its application to demolish existing structures and construct a residential flat building at 28–32 Dover Road, Rose Bay. The site is in the R3 Medium Density Residential zone.
After an amendment to the application, the parties reached agreement at a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979 (NSW). The amended proposal included a rooftop lobby and lift overrun that exceeded the applicable 22-metre height limit and involved a seventh level for limited rooftop-access elements, despite the six-storey standard.
The Court’s Holding
Commissioner O’Neill held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions. The Court upheld the appeal and granted development consent for the amended proposal, subject to the conditions in Annexure A.
The Court accepted that the applicant’s requests to vary the relevant standards adequately met the requirements of cl 4.6(3) of Woollahra Local Environmental Plan 2014. The building predominantly presented as six storeys; the rooftop internal area was limited to a small lobby for access to communal open space; and the height-exceeding elements were discrete, centrally located, and needed to provide equitable, covered access.
Key Takeaways
- A s 34 conciliation agreement must be implemented where it is a decision the Court could properly have made.
- A limited rooftop lobby and lift overrun may justify variation of storey and height standards where the overall building envelope is substantially compliant.
- Fyve was ordered to pay the Council $10,000 in agreed costs thrown away by the amendment to the development application.
Why It Matters
The decision illustrates the Court’s willingness to approve a negotiated amended apartment proposal where discrete rooftop-access elements create technical non-compliance but do not alter the building’s predominant six-storey presentation. It also reinforces that the justification for a standards variation must address the specific non-compliant elements, rather than merely the benefits of the development overall.