55 William Street Developments Pty. Limited ATF the William Street Development Trust v Woollahra Municipal Council [2026] NSWLEC 1364

Catchwords: ENVIRONMENT AND PLANNING — consent — appeal — s 34 agreement — cl 4.6 variation —conditions of consent Land and Environment Court New South Wales Medium Neutral Citation: 55 William Street Developments Pty. Limited ATF the William Street Development Trust v Woollahra Municipal Council [2026] NSWLEC 1364 Hearing dates: 3 June 2026 Date of orders: 2 July 2026 Decision date: 02 July 2026 Jurisdiction: Class 1 Before: Sherry AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA-242/2025, as amended, for demolition of existing structures and construction of a six-storey residential flat building with two levels of basement parking, associated works, strata subdivision and construction certificate staging, is determined by the grant of consent subject to the conditions at Annexure A. (3) The Applicant is to pay the Respondents costs thrown away as a result of amended development application in the agreed amount of $11,500 within 28 days of these orders. Catchwords: ENVIRONMENT AND PLANNING — consent — appeal — s 34 agreement — cl 4.6 variation —conditions of consent Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), Pts 3, 4, ss 29, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.1, 6.6, 6.7, 6.8, 6.9 State Environmental Planning Policy (Housing) 2021, Chs 4, 6, ss 144, 147, 163, 175, 177, 178, 180, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, ss 1.3, 2.3, Sch 1 Woollahra Local Environmental Plan 2014, cll 2.3, 4.1, 4.3, 4.4, 4.6, 5.21, 6.1, 6.2, 6.9 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Department of Planning, Housing and Infrastructure, Tree Canopy Guide for Low and Mid Rise Housing (February 2025) Category: Principal judgment Parties: 55 William Street Developments Pty. Limited ATF the William Street Development Trust (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) M Wright SC (Respondent) Solicitors: Mills Oakley (Applicant) Woollahra Municipal Council (Respondent) File Number(s): 2025/370490 Publication restriction: Nil JUDGMENT These proceedings arose from an appeal to the Land and Environment Court (Court) pursuant to s 8.7 of the Environment al Planning and Assessment Act 1979 (NSW) ( EP&A Act ) , against the deemed refusal of Development Application No. DA242/2025 by Woollahra Municipal Council (Respondent). The Development Application sought consent for alterations and additions and change of use to the approved DA452/2024, from a multi-dwelling housing to residential flat building with associated works, strata subdivision and construction certificate staging at 55 William Street, Double Bay (the Site). The Site is zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP). The matter had been the subject of an earlier conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was terminated on 12 February 2026, and was consequently listed before me for hearing on 3 June 2026. However, before the hearing, the Applicant amended its application to address the Respondent ’ s concerns and contentions. On 14 April 2026, the Applicant filed a Notice of Motion seeking to amend the Development Application, and the Court granted leave to rely on the amended plans on 21 April 2026 (Amended Application). The Respondent notified the Amended Application for 30 days from 15 April to 15 May 2026 and received a number of submissions. The changes contained in the Amended Application included: Increased setbacks for level 3 to the roof ; Internal layout changes to basement level 1 ; Amendments to the shoring wall ; Internal layout changes to all habitable levels ; Reduction of the foyer area to the units on level 1 ; Amendments to the terraces on all habitable levels ; Inclusion of privacy screens to terraces ; Addition of a planter box to the fa çade on level 3 ; and Amendments to materials for the fa çade . Additional information in relation to the following matters was also prepared: Non-compliance with height control ; Landscaping ; Parking and Traffic ; Stormwater ; Tree Pruning ; Design Verification ; Design Capability ; and Fire Engineering . As the parties had reached an agreement on all issues, the matter was relisted for a s 34 conciliation conference before me on 3 June 2026. The Council was satisfied with the Amended Application, subject to conditions in Annexure A, and reached an agreement with the Applicant as to the terms of a decision in the proceedings that would be acceptable. The decision involves the Court exercising the functions under s 4.16 of the EP&A Act to grant development consent to the DA, as amended and subject to the agreed conditions in Annexure A. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ signed agreement if the decision is one that the Court ‘ could have made in the proper exercise of its functions ’ . That requires the Court to be satisfied of a number of pre-conditions. These have been addressed in a written submission made by the parties. Based on the parties ’ submission and the evidence before me I am satisfied that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons. Environmental Planning and Assessment Regulation 2021 (NSW) (EP&A Regulation) The content of the original and Amended Applications satisfies s 24 of the EP&A Regulation , and the parties are satisfied that there are no provisions of Pts 3 or 4 of the EP&A Regulation which would preclude the granting of consent. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) The Site is within the Sydney Harbour Catchment and as a result of s 6.1.(b), of the Biodiversity SEPP , Ch 6 – Water Catchments, applies. The Amended Statement of Environmental Effects (SEE) prepared by GSA Planning, and included in the Amended Application, confirms each of the relevant provisions of Ch 6 are met. Pursuant to the Biodiversity SEPP , s 6.6, the consent authority must consider matters that relate to water quality and quantity. The stormwater plans for the amended application include controls for the treatment and control of stormwater runoff and provide a stormwater arrangement designed to improve the quality of stormwater and minimise pollutant transfer. The consent authority must also consider matters relating to aquatic ecology (s 6.7), flooding (s 6.8), recreation and public access (s 6.9). The Court is satisfied that all matters required to be considered and/or addressed by the consent authority under Ch 6 of the Biodiversity SEPP have been addressed. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) Pursuant to the Resilience and Hazards SEPP , s 4.6(1)(a), a consent authority must not grant consent to a development unless it has considered whether the land is contaminated. The Site has only been known to be used for residential purposes. The Preliminary Site Investigation Report (Class 1 Application) concluded that contamination of the Site was unlikely, and that it was suitable for the development . The Court is satisfied that is the case. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) The Sustainable Buildings SEPP aims to encourage the design and delivery of sustainable buildings (s 1.3(a)). The Amended Application includes a BASIX Certificate which addresses the matters in s 2.1 and Sch 1 of the Sustainable Building s SEPP. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) The EP&A Regulation, s 29(1), requires development applications for residential apartment development to be accompanied by a statement by a qualified designer which explains how the development addresses the design principles for residential apartments and the Apartment Design Guidelines (ADG). Additionally, Ch 4 of the Housing SEPP, s 147(1), requires the consent authority to consider the design of the development, evaluated with reference to the design principles in Sch 9 of the Housing SEPP, as well as the ADG . The Housing SEPP applies to the development as it is more than three storeys and contains more than four dwellings (s 144(3)). A Design Verification Statement prepared by registered architects MHNDU, 2 April 2026, was included in the Amended Application and demonstrates that the development has been considered in relation to the design principles in Sch 9, as well as the ADG. In addition to Ch 4 of the Housing SEPP , Ch 6 – Low and Mid Rise Housing applies to the Site, and the parties agree that it falls within the s 163 definition of a ‘ low to mid rise inner area ’ , being within 400 m walking distance of Double Bay Town Centre (Amended Statement of Environmental Effects, p 25 and the Respondent ’ s Statement of Facts and Contentions (SOFAC), p 6). Housing SEPP, s 180(2)(a), applies a non-discretionary development standard for a maximum floor space ratio of 2.2:1, with which the Amended Application complies (DA9101 GFA Calculations (Rev B), 2 April, Amended Application). In terms of building height, s 180(2)(b) applies a non-discretionary development standard of 22 m to the Site, and in accordance with s 175(2), development consent for a residential flat building must not be granted unless the consent authority is satisfied that a building of up to 22 m will have six or fewer storeys. The Amended Application would result in a building that has fewer than six storeys, but which has a maximum height of 23.815m (DA3100 Section AA & DA9110 Height Plane (Rev B), 2 April 2026, Amended Application). As a result, the Amended Application does not comply with s 180(2)(b) and the Applicant sought to rely on a variation report prepared in accordance with cl 4.6 of the WLEP ( ‘ SEPP (Housing) 2021 Clause 4.6 Exceptions to Development Standards – Height of Buildings No.55 William St Double Bay ’ , GSA Planning, 7 April 2026, Amended Application, ‘ Variation Report ’ ). Under the WLEP, cl 4.6(3), consent may be granted if the consent authority is satisfied the applicant has demonstrated that compliance with the development standard is ‘ unreasonable or unnecessary in the circumstances ’ , and that there are ‘ sufficient environmental planning grounds to justify the contravention of the development standard ’ . The Variation Report establishes that the majority of the building would meet the 22 m non-discretionary standard in s 180(2)(b), and that ‘ the non-compliance relates primarily to the upper part of the proposed lift overrun, providing equitable access to the communal roof terrace ’ , (p 3). The Variation Report addresses why compliance with the 22 m standard is unreasonable or unnecessary in the circumstances, in particular that the height achieves the medium density character of the area and is consistent with the desired future character of the neighbourhood, (p p 5-9). The Variation Report also addressed the question of whether there were sufficient environmental planning grounds to justify the contravention of the development standard, relying on the minor extent of the variation and the equitable access it will provide, the achievement of the height objectives and the consistency with the desired future character of the neighbourhood, and the urban design benefits of the variation (p p 10-11). The Applicant relied on a second variation report, provided at the conciliation conference, in relation to the minimum lot size, suggesting that it did so out of an abundance of caution ( ‘ Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Minimum Lot Size, No.55 William St, Double Bay ’ , GSA Planning, 2 June 2026, ‘ Second Variation Report ’ ). While the minimum lot size for a residential flat building in an R3 Medium Density Residential zone is 700 m 2 under cl 4.1(A) of the WLEP, and the site is only 598.9 m 2 , the Housing SEPP, s 178(2)(a), states that a minimum lot size specified in another environmental planning instrument does not apply to the development of a residential flat building in a low and mid rise housing area zoned R3 Medium Density Residential. However, s 178(2) specifically refers to ‘ development that meets the standards in s 180(2) ’ . As noted above, the Amended Application does not meet s 180(2)(b), being more than 22 m. The Applicant ’ s caution in relying on cl 4.6 variation report in relation to minimum lot size was well advised, because on a plain reading of the section, the exemption in s 178(2)(a) does not apply to the development at hand. The Second Variation Report details the way in which compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the height of buildings control are satisfied, notwithstanding the variation. The Second Variation Report states that the proposal ‘ provides a height, bulk and scale that is consistent with that envisaged by the Council ’ s controls ’ , (p 7), with further details set out at pp 7-9 . At pp 9-10 of the report, sufficient environmental planning grounds to justify contravening the control are described, including the site ’ s capacity of contain a residential flat building, the consistency of the proposed development with surrounding development, a lack of amalgamation opportunities and the orderly and economic use of land. The Housing SEPP , s 177(2), requires the consent authority to consider the Tree Canopy Guide for Low and Mid Rise Housing , published by the Department in February 2025 ( ‘ Tree Canopy Guide ’ ). With 22.2% tree canopy and 19% deep soil, the Amended Application (Landscape plans, Wyer and Co, in particular plans numbered DA_201 and DA_202) indicate that the landscaping will exceed the guidance objectives in Tables 6 and 7 of the Tree Canopy Guide. Woollahra Local Environmental Plan 2014 (WLEP) The WLEP is applicable to the development which is permissible in the R3 Medium density zone with consent. Pursuant to cl 2.3(2), the consent authority must have regard to the objections for development in the zone, which include: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. To ensure development conserves and enhances tree canopy cover. The parties agree that the Amended Application is consistent with these objectives. As noted above, the minimum lot size in the WLEP, cl 4.1(A) applies to the land as the development does not benefit from the exemption in the Housing SEPP, s 178(2)(a). The Applicant provided the Second Variation Report at the conciliation conference to support the granting of a consent that convenes development standard set by the WLEP. This was dealt with above. The maximum height of buildings set by the WLEP, cl 4.3, does not apply to the Site as it is overridden by the non-discretionary development standard in s 180(2)(b) of the Housing SEPP. That standard is not met, but the Applicant relied on a cl 4.6 Variation Report, dealt with above. Similarly, the floor space ratio required by the WLEP, cl 4.4(2) is overridden by the Housing SEPP , s 180(2)(a), with which the Amended Application complies. The Site is situated in the Double Bay Catchment Flood Study Area and under WLEP, cl 5.21 the consent authority is required to consider a number of matters before granting consent to the development. The development application contained Flood Risk Management Report prepared by Catchment Simulation Solutions, which confirmed that the development would be protected to the minimum level required as detailed in the DCP. Accordingly, the Court accepts that the there are no significant flooding impacts on the Site or neighbouring properties. The Site is within the Class 2 Acid Sulfate Soils Map under the WLEP, cl 6.1(2), and an Acid Sulfate Soil Assessment & Management Plan prepared by EI Australia in accordance with cl 6.1(3) (Class 1 Application). The Plan confirms that there is no known significant occurrence of acid sulfate soils at this Site, and that the impacts of the proposed development on the local acid sulfate soils are unlikely. The Court accepts that the requirements of cl 6.1 of the WLEP has been adequately satisfied . Clause 6.2(3) of the WLEP requires the consent authority to consider a number of matters before granting development consent for earthworks. A Geotechnical Report prepared by EI Australia (Class 1 Application) was submitted and considers excavation methods to limit effects on nearby residents and developments. The Report confirms that proposed earthworks are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The parties agree that the development is unlikely to have an adverse impact on drainage patterns, soil stability or impact on adjoining properties. To the extent that the development is to avoid, minimise or mitigate impact of the earthworks in its design, the proposed development has been designed to reduce the amount of excavation and minimise impact. The Court is satisfied that the matters set out in cl 6.2 have been considered and that appropriate measures to avoid or minimise the impacts of the development have been imposed, including in conditions of consent. The WLEP, cl 6.9(3) requires the consent authority to consider whether the development in an R3 zone incorporates planning and design measures to enable the retention and planting of trees to minimise the urban heat island effect, and will avoid, minimise or mitigate adverse impacts on the existing tree canopy. The Amended Application will retain all significant trees worthy of retention, provides adequate tree canopy cover and deep-soil landscape areas to support the proposed landscape scheme (Landscape plans, Wyer and Co). The Court accepts that cl 6.9(3) of the WLEP has been adequately satisfied . Remaining matters in s 4.15(1) The amended plans, materials and conditions of consent agreed between the parties resolve the Respondent's merit concerns. The Court is satisfied that the Development Application, as amended, and the conditions of consent are appropriate and address resident objector concerns appropriately, and the proposal is considered to be in the public interest. The proposed agreed conditions of consent are lawful having regard to EP & A Act, s 4.16(1) and s 4.17, and relevant legal principles. Conclusion and orders As the parties ’ decision is within power, I now dispose of the proceedings in accordance with that decision. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP & A Act. The Court notes that: Woollahra Municipal Council, as the relevant consent authority, has approved, under s 38(1) of the EP&A Regulation , the Applicant's amendment to Development Application DA-242/2025, to include the following documents: 1 Architectural Plans (Rev B) prepared by MHNDU • DA0000 – Cover Page • DA1000 – Site Context • DA1001 – Setback Analysis Plan • DA1002 – Site Analysis Plan • DA1003 – Site Plan • DA1004 – BASIX Commitments • DA1005 – Survey Plan • DA1006 – Demolition Plan • DA2000 – Basement – 2 Plan • DA2001 – Basement – 1 Plan • DA2002 – Ground Floor Plan • DA2003 – Level 1 Plan • DA2004 – Level 2 Plan • DA2005 – Level 3 Plan • DA2006 – Level 4 Plan • DA2007 – Level 5 Plan • DA2008 – Roof Plan • DA3000 – Elevation North + External Finishes • DA3001 – Elevation South + External Finishes • DA3002 – Elevation East + External Finishes • DA3003 – Elevation West + External Finishes • DA3004 – Streetscape Elevation • DA3100 – Section AA • DA3101 – Section BB • DA3102 – Section CC • DA6000 – Photomontage • DA6100 – Door and Window Schedule • DA9000 – Design Verification Statement • DA9001 – Housing SEPP – Principle 1 & 2 • DA9002 – Housing SEPP – Principle 3 & 4 • DA9003 – Housing SEPP – Principle 5 & 6 • DA9004 – Housing SEPP – Principle 7 & 8 • DA9005 – Housing SEPP – Principle 9 & Conclusion • DA9100 – GFA Calculations • DA9101 – GFA Calculations • DA9102 – Landscape Areas – Deep Soil Calculation (DCP) • DA9103 – Landscape Areas – Deep Soil Calculation (ADG) • DA9104 – Landscape Areas – Deep Soil Calculation (LMR) • DA9105 – Private Open Space • DA9106 – Private Open Space • DA9107 – Communal Open Space • DA9108 – Waste Management • DA9109 – Waste Management • DA9110 – Height Blanket Diagram • DA9111 – Excavation Diagram • DA9112 – ADG Compliance Diagrams • DA9113 – ADG Compliance Diagrams • DA9114 – Views from the Sun 9am – 21 June • DA9115 – Views from the Sun 10am – 21 June • DA9116 – Views from the Sun 11am – 21 June • DA9117 – Views from the Sun 12pm – 21 June • DA9118 – Views from the Sun 1pm – 21 June • DA9119 – Views from the Sun 2pm – 21 June • DA9200 – Views from the Sun 3pm – 21 June • DA9200 – Shadow Diagrams 9am – 21 June • DA9201 – Shadow Diagrams 10am – 21 June • DA9202 – Shadow Diagrams 11am – 21 June • DA9203 – Shadow Diagrams 12pm – 21 June • DA9204 – Shadow Diagrams 1pm – 21 June • DA9205 – Shadow Diagrams 2pm – 21 June • DA9206 – Shadow Diagrams 3pm – 21 June • DA9207 – 3D Sun View 9am – 21 June • DA9208 – 3D Sun View 10am – 21 June • DA9209 – 3D Sun View 11am – 21 June • DA9210 – 3D Sun View 12pm – 21 June • DA9211 – 3D Sun View 1pm – 21 June • DA9212 – 3D Sun View 2pm – 21 June • DA9213 – 3D Sun View 3pm – 21 June • DA9300 – Window Details • DA9400 – Notification Plan • DA9401 – Notification Elevations 2 April 2026 2 Amended Statement of Environmental Effects prepared by GSA Planning 7 April 2026 3 Clause 4.6 Variation Report prepared by GSA Planning 7 April 2026 4 Design Verification Statement prepared by MHNDU 2 April 2026 5 Tree Pruning Assessment prepared by Martin Peacock Tree Care 2 April 2026 6 Parking Statement prepared by PDC Consultants 2 April 2026 7 Design Capability Statement prepared by NEST Consulting Group 2 April 2026 8 Fire Engineering Letter prepared by Innova Services 7 April 2026 9 Acoustic Statement prepared by Pulse White Noise Acoustic 2 April 2026 10 Draft Strata Plan - 11 BASIX Certificate No. 1770193M_04 prepared by IGS 24 April 2026 12 BASIX and NatHERS Assessment Report prepared by IGS 24 April 2026 13 Landscape Plans (Rev 02) prepared by Wyer & Co • DA001 – Cover Page & Contents • DA002 – Landscape Installation & Maintenance Specification • DA003 –Landscape Controls & Schedules • DA004 – Landscape Controls & Schedules • DA100 –Landscape Master Plan • DA101 – Ground Floor - Front • DA102 – Ground Floor - Rear • DA103 – Level 1 • DA104 – Level 2 • DA105 – Level 3 • DA106 – Level 4-5 • DA107 – Roof Terrace • DA200 – Deep Soil Calculations Woollahra DCP • DA201 – Deep Soil Calculations ADG • DA202 – Deep Soil Calculations LMR • DA203 – Canopy Area Calculations • DA300 – Details – Typical 7 April 2026 14 Stormwater Plans (Rev 1) prepared by IGS • SW-0000 – Cover Sheet & Drawing Schedule • SW-0002 – Specification • SW-1098 – Stormwater – Basement 2 • SW-1099 – Stormwater – Basement 1 • SW-1100 – Stormwater – Ground Floor • SW-1106 – Stormwater – Roof 7 April 2026 15 Photomontage - Orders The Court orders that: The appeal is upheld. Development Application DA-242/2025, as amended, for demolition of existing structures and construction of a six-storey residential flat building with two levels of basement parking, associated works, strata subdivision and construction certificate staging, is determined by the grant of consent subject to the conditions at Annexure A . The Applicant is to pay the Respondents costs thrown away as a result of amended development application in the agreed amount of $11,500 within 28 days of these orders. C Sherry Acting Commissioner of the Court ********** Annexure A (162 KB, docx) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2026