Braimoh v Willoughby City Council

Category: Principal judgment

Parties: Deborah Braimoh (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
J Simpson (solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/236006

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Willoughby City Council, of Development Application DA-2024/284. This application seeks consent for the demolition of existing buildings on the site and construction of a n attached dual occupancy, swimming pools, separate driveways with garages, landscaping, subdivision and associated works at 28 Highland Ridge Road, Middle Cove, Lot 133 DP 28763.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 10 November 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Accordingly, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments include:

6. A reduction to the lower ground floor footprint by removing the storage room and garden, and inclusion of a lift core;

7. A reduction to the footprint of the western dwelling (No. 28a) to provide compliant 2.5m setback to western boundary;

8. A reduction in the size of the swimming pool to the eastern dwelling;

9. Increased landscaping to comply with the Willoughby Development Control Plan 2023, and;

10. Modification to the first floor level to reduce bulk and scale, and increase setbacks.

11. Under section 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 19 December 2024 to 7 February 2025. Five submissions were received, but no residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties agree that the amended application does not necessitate renotification as the environmental impacts are reduced with the modifications.

9. The development is located on bush fire prone land and accordingly, a bush fire safety authority and general terms of approval have been obtained from the NSW Rural Fire Service prior to development, pursuant to s 100B of the Rural Fires Act 1997 (NSW). These general terms of approval have been incorporated into the agreed conditions of consent.

10. The site is located within the Sydney Harbour Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. The application is accompanied by stormwater plans by Greenview Consulting dated 6 December 2024, amended sediment and erosion control plan by Valor Residential dated 28 April 2024, and a Statement of Environmental Effects by The Planning Co dated 11 November 2024 (SEE). From these documents and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

11. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the SEE, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the ongoing residential use.

12. Pursuant to s 27 of the EPA Regulation a BASIX certificate, that relates to the development as amended, accompanies the application.

13. As the development is to be carried out within 5m of an exposed overhead electricity power line, a referral was made to Ausgrid, who have issued approval subject to conditions pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.48. These conditions have been incorporated into the agreed conditions of consent.

14. The subject site is zoned C4 Environmental Living under the Willoughby Local Environmental Plan 2012 (WLEP), within which development for the purposes of both dwelling houses and dual occupancies is permissible with consent. The proposed development is consistent with the objectives of this zone.

15. Demolition is also permitted with consent pursuant to WLEP cl 2.7.

16. Pursuant to WLEP cl 4.3, a maximum building height of 8.5m applies to the subject site, with which the proposed development complies.

17. WLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.25:1. Cl 4.4A increases that maximum to 0.26:1 because the site area meets the conditions of this clause. Regardless, the proposed development exceeds this maximum with a proposed FSR of 0.315:1. Pursuant to WLEP cl 4.6, the applicant has submitted a request to vary the FSR development standard, prepared by The Planning Co, dated 2 April 2025. From this written request, I am satisfied that compliance with the development standard is unreasonable or unnecessary in these circumstances because the proposed development complies with the relevant objectives of both the C4 Environmental Living Zone and the FSR development standard, notwithstanding the non-compliance. Further, the applicant has demonstrated there are sufficient environmental planning grounds to justify breaching the development standard because: the proposed bulk and scale are appropriate in the streetscape, and is a suitable response to the local character, and the non-compliance does not result in any adverse amenity impacts.

18. Pursuant to WLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but are not within 500m of Class 1, 2, 3 or 4 land and are not likely to lower the water table below 1 metre Australian Height Datum. Accordingly, an acid sulfate soils management plan is not required, and the requirements of WLEP cl 6.1 are met.

19. Earthworks are proposed in the development for the provision of a basement and swimming pool. Accordingly, the parties submit, and I accept that the matters listed in WLEP cl 6.2(3) have been considered, as demonstrated by the amended application, and that the earthworks are acceptable pursuant to these provisions.

20. WLEP cl 6.3 provides for matters of urban heat. From the parties’ submission and the SEE, I accept that the matters listed in cl 6.3(2) have been considered and the proposed development has been designed to reduce and remove urban heat.

21. The proposed development complies with the minimum lot size requirement of WLEP cl 6.10 of 700m2. The site has an area of 1255m2.

Conclusion

22. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The Court notes:

24. The respondent, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-2024/284 in accordance with the documents listed below:

| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Cover Sheet | 00.01 | DA07 | 31/10/2025 | Valor Residential | | Site Analysis Survey Plan | 23-11P1B | - | 17/6/2025 | JRK Surveys | | Demolition Plan | 00.03 | DA07 | 31/10/2025 | Valor Residential | | Site Plan | 00.04 | DA07 | 31/10/2025 | Valor Residential | | Site Analysis | 00.04B | DA07 | 31/10/2025 | Valor Residential | | Context Analysis | 00.04c | DA07 | 31/10/2025 | Valor Residential | | Lower Ground Floor Plan | 00.05 | DA07 | 31/10/2025 | Valor Residential | | Ground Floor Plan | 00.06 | DA07 | 31/10/2025 | Valor Residential | | First Floor Plan | 00.07 | DA07 | 31/10/2025 | Valor Residential | | Roof Plan | 00.08 | DA07 | 31/10/2025 | Valor Residential | | Elevations 01 & 02 | 00.09 | DA07 | 31/10/2025 | Valor Residential | | Elevations 03 & 04 | 00.10 | DA07 | 31/10/2025 | Valor Residential | | Sections A & B | 00.11 | DA07 | 31/10/2025 | Valor Residential | | Sections C & D | 00.11b | DA07 | 31/10/2025 | Valor Residential | | Pool | 00.12 | DA07 | 31/10/2025 | Valor Residential | | GFA Calculations | 00.13 | DA07 | 31/10/2025 | Valor Residential | | Landscape Calculations | 00.14 | DA07 | 31/10/2025 | Valor Residential | | Deep Soil Calculations | 00.14b | DA07 | 31/10/2025 | Valor Residential | | External Door Schedule | 00.15 | DA07 | 31/10/2025 | Valor Residential | | Window Schedule 1/2 | 00.16 | DA07 | 31/10/2025 | Valor Residential | | Window Schedule 2/2 | 00.17 | DA07 | 31/10/2025 | Valor Residential | | Material & Selections | 00.18 | DA07 | 31/10/2025 | Valor Residential | | Shadow Diagrams – June | 00.19 | DA07 | 31/10/2025 | Valor Residential | | Shadow Diagrams – December | 00.20 | DA07 | 31/10/2025 | Valor Residential | | Driveway Crossover Section | 00.21 | DA07 | 31/10/2025 | Valor Residential | | 3D Perspective | 00.22 | DA07 | 31/10/2025 | Valor Residential | | BASIX Certificate 1/3 | 00.23 | DA07 | 31/10/2025 | Valor Residential | | BASIX Certificate 2/3 | 00.24 | DA07 | 31/10/2025 | Valor Residential | | BASIX Certificate 3/3 | 00.25 | DA07 | 31/10/2025 | Valor Residential | | Building Height Plane & Envelope | 00.26 | DA07 | 31/10/2025 | Valor Residential | | Additional Diagrams | 00.27 | DA07 | 31/10/2025 | Valor Residential | | Sediment and Erosion Control Plan | 00.28 | DA07 | 31/10/2025 | Valor Residential | | Notification Plans | ADV | DA07 | 31/10/2025 | Valor Residential | | Amended Landscape Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Cover Sheet | L-00 | F | 10/10/2025 | Site Design + Studios | | GF_Landscape Plan | L-01 | F | 10/10/2025 | Site Design + Studios | | GF_Planting Plan | L-01.1 | F | 10/10/2025 | Site Design + Studios | | Section_Elevations | L-01.2 | F | 10/10/2025 | Site Design + Studios | | L1_Landscape Plan | L-02 | F | 10/10/2025 | Site Design + Studios | | Plant Details | L-03 | F | 10/10/2025 | Site Design + Studios | | Existing Tree | L-05 | F | 10/10/2025 | Site Design + Studios | | Notes | L-06 | F | 10/10/2025 | Site Design + Studios | | Specification | L-07 | F | 10/10/2025 | Site Design + Studios | | Vehicle Swept Path Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Swept Path Analysis Statement | - | - | 8 October 2025 | Headway Traffic & Transport | | Entry Space 1 and 3 | DEB-2501-100-001 | A.02 | 8 October 2025 | Headway Traffic & Transport | | Exit Space 1 and 3 | DEB-2501-100-002 | A.02 | 8 October 2025 | Headway Traffic & Transport | | Entry Space 2 and 4 | DEB-2501-100-003 | A.02 | 8 October 2025 | Headway Traffic & Transport | | Exit Space 2 and 4 | DEB-2501-100-004 | A.02 | 8 October 2025 | Headway Traffic & Transport | | Amended Survey Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Site Analysis Survey over Lot 133 in DP28763 | 23-118P1B Sheet 1 of 3 | - | 17/6/2025 | JRK Surveys | | Site Analysis Survey over Lot 133 in DP28763 | 23-118P1B Sheet 2 of 3 | - | 17/6/2025 | JRK Surveys | | Site Analysis Survey over Lot 133 in DP28763 | 23-118P1B Sheet 3 of 3 | - | 17/6/2025 | JRK Surveys | | Amended Reports | | Report name | Date | Prepared by | | Planning Statement – Without Prejudice Response to Statement of Facts and Contentions | 5/9/2025 | The Planning Co. | | Amended Arboricultural Assessment | 14/8/2025 | Sydney Arbor Consultancy | | Amended BASIX Certificate No. 1766685M_03 | 13/10/2025 | Noura Al Hazzouri | | Amended NatHERS Certificate No. 0009782590 | 13/10/2025 | Noura Al Hazzouri |

24. The Court orders:

25. The appeal is upheld.

26. Development Application DA-2024/284 for the demolition of existing dwelling and construction of an attached dual occupancy, swimming pools and associated landscaping at 28 Highland Ridge Road, Middle Cove is determined by the grant of consent subject to the conditions set out in Annexure A.

E Washington

Commissioner of the Court

Annexure A (542 KB, pdf)

**********