Australia, April 8 -- New South Wales Land and Environment Court issued text of the following judgement on March 7:
1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the Municipality of Woollahra (Council) of Development Application No. DA141/2024 (the DA) for a change of use from an approved commercial development (under DA280/2022, 2 Bay Street Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1222 and as modified by DA280/2022/3 on 15 August 2024) to shop top housing to accommodate a single residential apartment at the top floor with associated works including new roof terrace and swimming pool on land legally known as Lot 1 DP1286687 at 294-298 New South Head Road and 2-10 Bay Street (now known as 2 Bay Street) Double Bay (the site).
Recent History of Development Consents for the site
2. The Respondent provided a detailed summary of the recent (post 2021) history of development consents for the site. The key milestones are:
1) On 25 February 2021, development application (DA No. 69/2021) was lodged with Council for the demolition of the existing buildings and construction of a shop-top housing development comprising residential and commercial uses at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay;
2) On 17 November 2021, the development application was approved in the Land and Environment Court (LEC) (Loftex Commercial Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1697) subject to conditions. The proposal resulted in an approved building height of 19.5m. Subsequently, a number of s 4.56 (EPA Act) modification applications were submitted and approved;
3) On 7 July 2022, development application (DA No. 280/2022) was submitted to Council for demolition of existing buildings and construction of a new five storey commercial building with basement parking at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay;
4) On 11 May 2023, the application was approved by the LEC with a maximum height of 20.15m and combined FSR of 2.77:1;
5) On 27 July 2023, a s 4.56 (EPA Act) modification application to DA No. 280/2022 was submitted to Council to modify conditions relating to the deferred commencement and staging of construction certificates at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. On 16 August 2023, the modification application was approved by Council;
6) On 31 October 2023, a development application (DA No. 403/2023) was submitted with Council for Subdivision (Strata) of Lot 1 in DP1286687 into 5 lots at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. On 14 December 2023, the development application was approved by Council; and
7) On 16 February 2024, a further section 4.56 modification application to DA No. 280/2022 was submitted with to Council for internal and external modifications to approved commercial development at Nos. 294-298 New South Head Road & Nos. 2-10 Bay Street, Double Bay. This modification application was approved by the Woollahra Local Planning Panel on 15 August 2024.
Development Application DA141/2024
3. On 1 May 2024, Development Application DA141/2024 (under DA No. 280/2022) (the DA) was submitted to Council seeking "Change of use from an approved new commercial development (under DA280/2022, NSWLEC 1222) to a shop top housing development to accommodate a single residential apartment at the top floor with associated works including new roof terrace and swimming pool."
*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19564060553a788e22486fe6)
Disclaimer: Curated by HT Syndication.
