COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application (the MA) made directly to the Court by APlus Architecture Pty Ltd (the Applicant).
The MA seeks to modify Development Consent DA-2022/95 (the parent DA) which comprises the partial demolition of the existing commercial building, the construction of a mixed-use development with retail and commercial floor space on the ground, first, second and third floors, and residential apartments on the third to sixth floors, including rooftop communal space, and lot consolidation at 282 Victoria Avenue, Chatswood (the site).
Consent for the parent DA was granted by the Court on 13 June 2023 in APlus Architecture Pty Ltd trading as APlus Design Group v Willoughby City Council [2023] NSWLEC 1273 (APlus v Willoughby).
This parent DA was preceded by an earlier relevant consent, granted by the Court on 21 August 2020 in UT 282 Victoria Pty Ltd v Willoughby City Council [2020] NSWLEC 1387 (UT 282 v Willoughby). This earlier DA granted consent for the carrying out of alterations and additions to existing, commercial premises to create a shop top housing development, this use being permissible despite being otherwise prohibited in the zone by reason of an additional permitted use clause in the Willoughby Local Environmental Plan 2012 (WLEP).
The MA was lodged with the Court on 10 July 2023.
At the date of its lodgement, the MA sought approval for a range of modifications, which include:
1. An increase in overall gross floor area (GFA) and floor space ratio (FSR) from 4,130sqm (FSR 3.4:1) to 4,415sqm (FSR 3.68:1).
2. Changes to the ratio of approved residential to non-residential development, from 2,780sqm residential and 1,350sqm non-residential, to 2,780sqm residential and 1,635sqm non-residential.
3. At the Ground Floor Level a revised facade treatment to both the Victoria Avenue and Neridah Street frontages, lowering of the finished floor level by 1.22m and 1.15m, removal of the platform lift, deletion of a residential waste holding room, change to the configuration of the fire isolated hallway and means of connection to 284 Victoria Avenue, a reconfigured substation, and removal of the internal stairs connecting the retail tenancy to Level 1.
4. As a result of the lowering of the retail ground floor, implementation of ground level flood protection including a flood roller door and flood-proof glass.
5. At Level 1 the removal of a car space and replacement with retail floor space and relocation of bike spaces.
6. At Level 2 the removal of six car spaces to accommodate additional retail floor space, a new amenities room serving 284 Victoria Avenue, additional bicycle rails and the inclusion of a single motorcycle parking space.
7. At Level 3 reconfiguration to internal access ways, including creation of a new hallway linking 284 Victoria Avenue with the residential lobby area at 282 Victoria Avenue.
APlus Architecture Pty Ltd v Willoughby City Council [2024] NSWLEC 1515 | Case summary | Zoe
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 February and 13 August 2024. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting consent to an amended MA, subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55(8) of the EPA Act to modify the parent DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard and pursuant to ss 98(1) and 100(1)(i) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, maintaining the approved use of the land as a six-storey mixed-use building with retail and commercial space on the ground, first, second and third floors, and residential apartments on the third to sixth floors and rooftop communal space. The proposed amendments are contained within the approved building envelope, with no changes to the approved building setback and building separation arrangements and there is no material change in the height of the building.
The parties agree, and I am satisfied, that the MA was publicly notified between 18 October and 8 November 2023 in accordance with the Respondent's Community Participation Plan and no submissions were received. I am satisfied that the MA has been appropriately notified as required by s 4.55(2)(c) of the EPA Act.
Agreed amendments to the MA include design changes to:
1. Alter some internal spaces, in order to achieve better internal access and connectivity with the adjacent site.
2. Alter the facade to achieve better ground floor activation and a more consistent street facade with the adjacent site.
3. Reconfigure internal retail spaces.
4. Reconfigure internal services including parking and the introduction of an additional lift core to improve residential amenity.
5. Lower the retail ground level to provide better street activation, and related flood mitigation measures.
6. Reconfigure the structural design in order to facilitate greater retention of the fabric of the existing building, which is to be adaptively reused.
7. Reconfigure the layout of the residential accommodation and facade, to reflect the reconfigured and retained structural elements.
The parties agree, and I am satisfied, that pursuant to s 4.55(3) of the EPA Act the Court - as consent authority - must take into consideration such matters referred to in s 4.15(1) of the EPA Act as are relevant to the amended MA. The Court must also take into consideration the reasons given for the grant of the consent that is sought to be modified.
The parties agree, and I am satisfied, that the reasons for the grant of consent for the parent DA (as set out in APlus v Willoughby and UT 282 v Willoughby) have been appropriately considered in the assessment of the MA.
The parties agree, and I am satisfied, that the WLEP is the relevant local environmental planning instrument. The site is zoned E2 Commercial Centre and the approved development - characterised as shop top housing - was permissible with consent at the date the parent DA was made.
Although shop top housing is now a prohibited use of the land, the parties agree and I am satisfied, that this is not an impediment to the subject MA given that the use of the land remains compatible with the objectives of the present E2 Commercial Centre land use zone since there is no intensification of the existing approved residential accommodation.
The parties agree, and I am satisfied, that pursuant to cl 5.21 - Flood planning - of the WLEP, the amended MA includes a design for the ground floor retail tenancies that minimises potential for property damage by the introduction of flood mitigation measures including flood gates and by configuring the majority of the retail space on an internal mezzanine level raised above the relevant flood planning level. As such, I am satisfied that the amended MA remains consistent with the objectives of cl 5.21 of the WLEP, and that appropriate consideration has been given to the reasons for imposing Condition of Consent 9 of the parent DA.
The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure). I am satisfied that the amended MA remains consistent with the provisions of SEPP Infrastructure. The amended MA is supported by a traffic and parking report prepared by Varga Traffic Planning, which, it is agreed, confirms suitable parking arrangements are provided.
The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience). A Preliminary Site Investigation (PSI), prepared by Martens, accompanied the parent DA and confirmed that the site was suitable for development subject to various recommendations.
Consent was granted by the Court to the parent DA noting that, on the basis of this PSI and imposed Conditions of Consent 1 and 80, the Court was satisfied that s 4.6 of SEPP Resilience was appropriately addressed.
Accordingly, the parties now agree, and I am satisfied, that the amended MA remains consistent with the provisions of SEPP Resilience.
The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to s 100(3) for the EPA Reg, an amended BASIX certificate has been submitted with the MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that the amended MA remains subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65).
Pursuant to s 102 of the EPA Reg, the Applicant's nominated architect, Mr Tony Kai Chi Leung (NSW registered architect 7133), has prepared a Design Verification Statement confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the design quality principles of SEPP 65, and the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved.
Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the Modification Application with the approval of the Respondent.
2. The Applicant has agreed to pay the Respondent's costs thrown away, in the agreed sum of $18,000, within 28 days of the date of these orders.
3. The Applicant has lodged the amended Modification Application with the Court on 7 August 2024.
[2]
Orders
The Court orders that:
1. Leave is granted to the Applicant to amend Modification Application DA-2022/95 and rely upon the amended plans and documents referred to at Condition 2 of Annexure A.
2. Development Consent DA-2022/95 is modified in the terms set out at Annexure A.
3. Development Consent DA-2022/95 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.
[3]
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Decision last updated: 23 August 2024