APlus Architecture Pty Ltd v Willoughby City Council

JUDGMENT

1. 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).
2. 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).
3. 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).
4. 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).
5. The MA was lodged with the Court on 10 July 2023.
6. 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.