APLUS ARCHITECTURE PTY LTD v Willoughby City Council

Cases Cited: Eid v Penrith City Council [2025] NSWLEC 1648
SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Willoughby City Council, Community Engagement Strategy (25 May 2023)
Willoughby Development Control Plan 2023

Category: Principal judgment

Parties: Aplus Architecture Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/441086

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 2025/185 (DA) for the demolition of existing structures and construction of a seven storey residential flat building, comprising 39 apartments including 7 affordable housing units, over two levels of basement parking for 38 vehicles including 6 visitor parking spaces (the Proposal), at Lots 8-10 in DP 5850, known as 1-5 Kooringa Road, Chatswood (the Site), by Willoughby City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 May and 4 June 2026. I presided over the conciliation conference.

Outcome

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties' decision is recorded in the executed s 34(3)(a) Agreement Between Parties filed on 9 June 2026. 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.

4. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Council as the relevant consent authority, approves the Applicant amending the DA pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) in accordance with the plans and documents listed in the schedule at [50] in this judgment, not all of which have been listed under condition 2 of the conditions of consent at Annexure A.

Pre-conditions to the grant of consent

6. I am satisfied that the decision to grant development consent to the amended application subject to the conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons.

Willoughby Local Environmental Plan 2012 (WLEP)

7. WLEP is the relevant local environmental planning instrument that applies to the Site and compliance with the relevant provisions in WLEP has been addressed in the Statement of Environment Effects prepared by Matsuplan Planning Services Pty Ltd dated 11 September 2025 (SEE) at Tab 4 of the Class 1 Application as summarised below.

Zoning and permissibility

8. Clause 2.3(2) of the WLEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The site is situated within the R3 Medium Density Residential Zone which has the following objectives:

9. To provide for the housing needs of the community within a medium density residential environment.

10. To provide a variety of housing types within a medium density residential environment.

11. To enable other land uses that provide facilities or services to meet the day-to-day needs of residents.

12. To accommodate development that is compatible with the scale and character of the surrounding residential development.

13. To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network.

14. To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.

15. I am satisfied that the objectives of the zone are met by the proposed development for the reasons explained in Part 5.4 of the SEE.

16. The Proposal is a residential flat building which is permissible with consent under the applicable land use table in the WLEP.

Height

11. While the proposed development exceeds the maximum height shown for the land on the Height of Buildings Map under cl 4.3(2) of the WLEP, the site is located within the low and mid-rise housing outer area under the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) which prevails over the height standard applicable under cl 4.3(2) of the WLEP. Under s 180(3)(b) of the Housing SEPP the site is subject to a maximum height of 17.5 m.

12. The Proposal also includes an affordable housing component of 15% and under s 16(3) of the Housing SEPP is therefore eligible for additional building height up to 30% above the maximum permitted under s 180(3)(b) of the Housing SEPP, bringing the maximum permissible height to 22.75 m.

Floor space

13. As the Proposal includes affordable housing, Ch 2 Pt 2 Div 1 of the Housing SEPP applies. The site is subject to a maximum floor space ratio (FSR) standard of 1.5:1 under s 180(3) of the Housing SEPP. In addition, under s 16(1) of the Housing SEPP, the affordable housing component of 15% makes the site eligible for additional floor space ratio up to 30%.

14. The maximum FSR for the site is therefore 1.95:1 which equals the Proposal's FSR. The proposal is therefore compliant.

Earthworks

15. As the Proposal involves earthworks, the consent authority must consider the matters in cl 6.2(3) of the WLEP.

16. The Council as the relevant consent authority has agreed that the proposed development is acceptable having regard to the matters set out in the Geotechnical Report prepared by EI Australia dated 12 September 2025 (Tab 10 of the Class 1 Application) which includes recommended measures at Part 4 to manage the impacts on adjoining properties arising from the excavation and to ensure adequate drainage. The proposal is therefore compliant.

Acid sulfate soils

17. The land is mapped as 'Class 5' on the acid sulfate soils map under the WLEP, however, is not located within 500 m of Class 1, 2, 3 or 4 land that is below 5 m Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 m AHD on adjacent Class 1, 2, 3 or 4 land. The proposal is therefore compliant.

Urban heat

18. The consent authority must consider the matters identified in WLEP cl 6.3(2) regarding the effects of urban heat. The SEE at p 44 confirms the Proposal includes substantial tree plantings including a suitable mix of canopy trees and medium size trees and a compliant deep soil zones to achieve urban cooling benefits. Integrated planter beds capable of achieving the required solar reflectance index under Clause 4.3.7 of the Willoughby Development Control Plan 2023 (WDCP) are also included at the podium and roof top communal spaces.

19. The Council as the relevant consent authority has agreed that the proposed development adequately avoids the effects of urban heat and is acceptable having regard to the matters set out in cl 6.3(2) of the WLEP.

Minimum lot size

20. The site has an area of 1,817 m2 and therefore complies with WLEP cl 6.10(2) which requires lot sizes over 1,100 m2 for residential flat building developments in zones R3 and R4.

Land reserved for acquisition

21. Approximately 101 m2 of the site adjacent to Stirling Lane at Nos 1 & 3 Kooringa Road (Lots 9 & 10 in DP 5850) is identified for acquisition as "Road Widening" in the WLEP Land Reservation Acquisition Map. An excerpt of this map is below:

22. Under WLEP cl 5.1A, development consent must not be granted to such land other than development for a purpose specified opposite the relevant land in Column 2 of the cl 5.1A Table.

23. The Council as the relevant consent authority has confirmed in the signed ‘NOTE TO SECTION 34 AGREEMENT: JURISDICTIONAL MATTERS’ (Jurisdictional Statement) accompanying the ‘Section 34(3)(a) AGREEMENT BETWEEN THE PARTIES’ that no works are proposed within the laneway widening area designated on the map, and that Council does not press to acquire this land. Based on the Council's confirmation, the proposal is eligible for Development consent.

State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP)

24. In accordance with s 4 of the SB SEPP, BASIX Certificate 1812688M dated 12 September 2025 (BASIX certificate) was lodged with the DA (Tab 15 of the Class 1 Application).

25. While the Council as the relevant consent authority has assessed that the Proposal does not differ materially from the description contained in the BASIX certificate that accompanied the original development application, and that under s 37(5) of the EPA Reg an amended BASIX certificate is not required in this case, having regard to the decisions in Eid v Penrith City Council [2025] NSWLEC 1648 at [24] referencing SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [14]-[17] and [82], the parties have agreed that an updated BASIX Certificate is warranted and that this can be dealt with by a condition of consent.

26. Accordingly, condition 7 in the conditions of consent requires that prior to the issue of any construction certificate, the BASIX Certificate is to be updated to reflect the architectural plans in condition 2 in the conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

27. Under RH SEPP s 4.6 the consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

28. SEE at p 34 notes there is a low potential for contamination to be present as the site has been historically used for residential purposes and there is low potential for contamination to be present onsite given the prolonged residential use of the site. Accordingly, the parties consider the site to be suitable for ongoing use for residential purposes, and no remediation works are required.

29. On this basis I find that the matters at RH SEPP s 4.6 have been satisfied.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

Chapter 2 - Infill affordable housing

30. The proposed development complies with the non-discretionary development standards for in-fill affordable housing development at s 19(2) of the Housing SEPP, as follows:

31. The site exceeds the minimum site area standard of 450 m2 at s 19(2)(a), having a site area of 1,817 m2;

32. The development has a landscaped area which equates to 30% if the site area, as required under s 19(2)(b);

33. The development provides a deep soil zone of at least 15% of the site area which has minimum dimensions of 3 m, at required under s 19(2)(c);

34. Living rooms and private open spaces in at least 70% of the dwellings receive at least 3 hours of direct solar access between 9am and 3pm at mid-winter as required under s 19(2)(d);

35. The development complies with the minimum internal area, if any, specified in the Apartment Design Guide (ADG) for the type of residential development as required under s 19(2)(g);

36. In accordance with s 21(1) of the Housing SEPP, condition 162 in the conditions of consent has been imposed to ensure that for a period of at least 15 years the development will include the affordable housing component required for the development and the affordable housing component will be managed by a registered community housing provider.

Chapter 4 - Design of residential apartment development

32. Section 147(1) of the Housing SEPP requires the consent authority to consider the following:

33. The design principles contained in Schedule 9 of the Housing SEPP;

34. The ADG; and

35. Any advice received from a design review panel within 14 days after the consent authority referred to the development application to the panel.

36. The design principles are addressed at pp 18-22 of the SEE. For the reasons explained in the SEE, the Proposal is consistent with the design principles.

37. The requirements of the ADG are addressed at pp 29-34 of the SEE. For the reasons explained in the SEE, the Proposal achieves the relevant objectives in the ADG.

38. The application was not referred to a design review panel constituted by the Minister under s 288A of the EPA Reg and therefore s 147(1)(c) of the Housing SEPP is not applicable.

Chapter 6 - Low and mid rise housing

36. Section 164 of the Housing SEPP states that this Chapter applies to land in a local government area that is in the Low and Mid Rise Housing Area. Low and Mid Rise housing area means land within 800 m walking distance of a town centre identified in the Town Centres Map. The proposed development is less than 800 m walking distance from the Chatswood Town Centre (p 24 of the SEE). Accordingly, the proposed development is located within the Low and Mid Rise Housing Area.

37. For the purpose of Ch 6 of the Housing SEPP, the development is in the Low and Mid Rise Housing Outer Area, being between 400 m and 800 m from the Chatswood Town Centre.

38. Section 176 of the Housing SEPP provides that development consent must not be granted for the purposes of residential flat buildings in R3 with a building height of up to 17.5 m unless the consent authority is satisfied that the building will have four storeys or fewer. The Proposal has a height of 22.75 m and six storeys, however, complies as the additional height and storeys rely on the affordable housing incentive.

39. Section 177 of the Housing SEPP provides that development consent must not be granted unless the consent authority has considered the Tree Canopy Guide for Low and Mid Rise Housing before granting consent. The relevant matters are dealt with in pp 26-27 of the SEE, with the proposal meeting the requirements of the guide.

40. Section 180(2) establishes non-discretionary development standards for development in the Low and Mid Rise Housing Outer Area as follows:

41. A maximum FSR of 1.5:1 - this development has an FSR of 1.95:1, but as noted above, the exceedance relates to the affordable housing incentive.

42. A maximum building height of 17.5 m - this development has a height of 22.75 m, however, as noted above, the exceedance relates to the affordable housing incentive.

Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)

41. Under the EPA Act s 4.15(1)(a)(ii) the consent authority is required to take into consideration the relevant provisions of the Willoughby Development Control Plan 2023 (WDCP). These provisions have been addressed in the SEE which includes a WDCP compliance table at 7.1.

42. The Council as the relevant consent authority has taken into consideration matters in ss 4.15(1)(b) to (e) of the EPA Act including significant likely impacts, site suitability, submissions, and the public interest in assessing the Development Application.

43. Matters relevant to ss (b), (c) and (e) are considered generally in the SEE. I believe these matters under the EPA Act have been satisfied.

44. Subsection (d) relates to public participation. The DA was advertised and notified between 20 October to 17 November 2025 in accordance with the WDCP and the Willoughby City Council Community Engagement Strategy. The Council confirmed 245 submissions were received. I believe the notification requirements under the EPA Act have been satisfied.

45. Owner's consent to the lodgement of the application has been provided in Tab 3 of the Class 1 Application and accords with the requirements of s 23(1) of the EPA Reg.

46. A design verification statement prepared by Aplus Design Group, dated 8 September 2025 has been provided in Tab 25 of the Class 1 Application confirming that the Proposal, as modified complies with the design quality principles and objectives in Parts 3 and 4 of the ADG in satisfaction of s 29 of the EPA Reg. The statement confirms that the Proposal is consistent with the design principles of the Housing SEPP and has been designed with regard to the ADG.

47. The proposed conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles and respond to the contentions raised.

Conclusion

48. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

49. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

50. The Court notes that the Council as the relevant consent authority has approved the Applicant amending the DA pursuant to s 38(1) of the EPA Reg in accordance with the plans and documents listed in the schedule here below which includes some plans and documents not listed in condition 2 of the conditions of consent at Annexure A to this judgment:

51. Architectural Plans prepared by Aplus Design Group as follows:

| Drawing No. | Drawing Name | Date | Revision No. | | DA 001 | Drawing List | 25.5.26 | E | | DA 002 | Development Summary | 25.5.26 | E | | DA 003 | BASIX & NatHERS | 25.5.26 | E | | DA 101 | Survey Plan | 25.5.26 | E | | DA 102 | Site Analysis – Location Plan 1 | 25.5.26 | E | | DA 103 | Site Analysis – Location Plan 2 | 25.5.26 | E | | DA 104 | Site Analysis – Massing Strategy | 25.5.26 | E | | DA 105 | Site Analysis Plan & Site Plan | 25.5.26 | E | | DA 106 | Local Character | 25.5.26 | E | | DA 107 | Demolition Plan | 25.5.26 | E | | DA 201 | Basement 02 Plan | 25.5.26 | E | | DA 202 | Basement 01 Plan | 25.5.26 | E | | DA 203 | Ground Level Plan | 25.5.26 | E | | DA 204 | Level 1 Plan | 02.6.26 | F | | DA 205 | Level 2-3 (Lower Level Typical) Plan | 25.5.26 | E | | DA 206 | Level 4 Plan | 25.5.26 | E | | DA 207 | Level 5 Plan | 25.5.26 | E | | DA 208 | Level 6 Plan | 25.5.26 | E | | DA 209 | Roof Plan | 25.5.26 | E | | DA 301 | North Elevation | 25.5.26 | E | | DA 302 | East Elevation | 25.5.26 | E | | DA 303 | South Elevation | 25.5.26 | E | | DA 304 | West Elevation | 25.5.26 | E | | DA 401 | Section 01 | 25.5.26 | E | | DA 402 | Section 02 | 25.5.26 | E | | DA 403 | Section 03 – Ramp Section | 25.5.26 | E | | DA 404 | Detailed Section | 25.5.26 | E | | DA 501 | Schedule of Materials & Finishes | 25.5.26 | E | | DA 601 | Shadow Diagrams – 01 | 25.5.26 | E | | DA 602 | Shadow Diagrams – 02 | 25.5.26 | E | | DA 603 | Shadow Diagrams – 03 | 25.5.26 | E | | DA 604 | Shadow Diagrams – 04 | 25.5.26 | E | | DA 605 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 606 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 607 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 608 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 609 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 610 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 611 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 612 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 613 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 614 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 615 | June 21st Shadow Diagrams – 1C Kooringa | 25.5.26 | E | | DA 651 | View from the Sun – June 21st 9AM | 25.5.26 | E | | DA 652 | Views from the Sun – June 21st 0930AM | 25.5.26 | E | | DA 653 | Views from the Sun – June 21st 10AM | 25.5.26 | E | | DA 654 | Views from the Sun – June 21st 1030AM | 25.5.26 | E | | DA 655 | Views from the Sun – June 21st 11AM | 25.5.26 | E | | DA 656 | Views from the Sun – June 21st 1130AM | 25.5.26 | E | | DA 657 | Views from the Sun – June 21st 12PM | 25.5.26 | E | | DA 658 | Views from the Sun – June 21st 1230PM | 25.5.26 | E | | DA 659 | Views from the Sun – June 21st 1PM | 25.5.26 | E | | DA 660 | Views from the Sun – June 21st 130PM | 25.5.26 | E | | DA 661 | Views from the Sun – June 21st 2PM | 25.5.26 | E | | DA 662 | Views from the Sun – June 21st 230PM | 25.5.26 | E | | DA 663 | Views from the Sun – June 21st 3PM | 25.5.26 | E | | DA 701 | Cross Ventilation and Solar Access | 25.5.26 | E | | DA 702 | Affordable Housing | 25.5.26 | E | | DA 703 | GFA Diagrams | 25.5.26 | E | | DA 704 | Communal Open Space Diagram | 25.5.26 | E | | DA 706 | Height Plane Diagram | 25.5.26 | E | | DA 801 | Pre/Post Adaptation Plan – Type 1 | 25.5.26 | E | | DA 802 | Pre/Post Adaptation Plan – Type 2 | 25.5.26 | E | | DA 803 | Pre/Post Adaptation Plan – Type 3 | 25.5.26 | E | | DA 804 | Pre/Post Adaptation Plan – Type 4 | 25.5.26 | E | | DA 805 | Pre/Post Adaptation Plan – Type 5 | 25.5.26 | E | | DA 806 | Pre/Post Adaptation Plan – Type 6 | 25.5.26 | E | | DA 807 | Pre/Post Adaptation Plan – Type 7 | 25.5.26 | E | | DA 808 | Pre/Post Adaptation Plan – Type 8 | 25.5.26 | E | | DA 809 | Pre/Post Adaptation Plan – Type 9 | 25.5.26 | E | | DA 901 | ADG Compliance Table | 25.5.26 | E | | DA 1101 | 1C Kooringa Elevation – June 21st 9AM | 25.5.26 | E | | DA 1102 | 1C Kooringa Elevation – June 21st 11.30AM | 25.5.26 | E | | DA 1103 | 1C Kooringa Elevation – June 21st 12PM | 25.5.26 | E | | DA 1104 | 1C Kooringa Elevation – June 21st 12.30AM | 25.5.26 | E | | DA 1105 | 1C Kooringa Elevation – June 21st 1PM | 25.5.26 | E | | DA 1106 | 1C Kooringa Elevation – June 21st 1.30PM | 25.5.26 | E | | DA 1107 | 1C Kooringa Elevation – June 21st 2PM | 25.5.26 | E | | DA 1108 | 1C Kooringa Elevation – June 21st 2.30PM | 25.5.26 | E | | DA 1109 | 1C Kooringa Elevation – June 21st 2.45PM | 25.5.26 | E | | DA 1110 | 1C Kooringa Elevation – June 21st 3PM | 25.5.26 | E |

2. Civil Design Plans prepared by Stellen Consulting as follows:

| Drawing No. | Drawing Name | Date | Revision no. | | CV-000 | Key Plan | 6.5.26 | 4 | | CV-100 | Public Domain Layout – Sheet 1 | 6.5.26 | 3 | | CV-101 | Public Domain Layout – Sheet 2 | 19.5.26 | 5 | | CV-200 | Driveway Layout and Section Profile – Sheet 1 | 6.5.26 | 4 | | CV-201 | Driveway Layout and Section Profile – Sheet 2 | 6.5.26 | 2 | | CV-202 | Driveway Layout and Section Profile – Sheet 3 | 6.5.26 | 2 | | CV-203 | Driveway Layout and Section Profile – Sheet 4 | 19.5.26 | 4 | | CV-400 | Swept Path | 10.9.25 | 1 | | CV-500 | Civil Details | 20.8.25 | 0 |

3. Landscape Plans prepared by Site Image Landscape Architects as follows:

| Drawing No. | Drawing Name | Date | Issue | | 000 | Landscape Coversheet | 20.5.26 | E | | 101 | Ground Level Plan | 20.5.26 | E | | 104 | Level 4 & Level 5 | 20.5.26 | D | | 106 | Level 6 – Roof Plan | 20.5.26 | E | | 501 | Landscape Details | 20.5.26 | B | | 901 | Compliance Diagrams | 20.5.26 | E | | 902 | Soil Depth Plans | 20.5.26 | C |

4. Stormwater Management Plans prepared by Stellen Consulting as follows:

| Drawing No. | Drawing Name | Date | Rev No. | | DR-000 | Legend | 29.4.26 | 2 | | DR-001 | Pipe Layout – Basement 2 and Basement 1 Floors | 29.4.26 | 3 | | DR-002 | Pipe Layout – Ground Floor Plan and Details | 22.5.26 | 3 | | DR-003 | OSD Catchments Plan and Detail | 29.4.26 | 2 | | DR-004 | Details | 22.5.26 | 3 | | DR-005 | Music Model | 22.5.26 | 1 | | DR-010 | Erosion and Sediment Control Plan | 24.4.26 | 1 | | DR-011 | Erosion and Sediment Control Plan - Details | 24.4.26 | 1 |

5. Onsite stormwater detention system design checklist prepared by Stellan Consulting.

Orders

51. The orders of the Court are:

52. The appeal is upheld.

53. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $15,000.

54. Development consent is granted to Development Application no. 2025/185 for the demolition of existing structures and construction of residential flat building of 39 apartments and 2 basement levels, subject to the conditions set out in Annexure A.

J Bilmon

Acting Commissioner of the Court

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Annexure A (522 KB, pdf)