Burnell v Willoughby City Council

Category: Principal judgment

Parties: Sean Burnell (First Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
M Parrino (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/409407

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of DA-2024/205 (DA). The DA seeks consent for the demolition of the existing dwelling and construction of two dwelling houses, Torrens title subdivision and associated works at 45 Darling Street, Roseville legally described as Lot 2 in DP 596131 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA-2024/205 in accordance with the documents listed below (amended DA):

| 1. | Architectural Plans prepared by Willoughby Architects | | i. Site Analysis, dwg no. DA1 1.1 | J | 12 April 2025 | | ii. Proposed Staging Plan, dwg no. DA1 1.3 | J | 12 April 2025 | | iii. Site Plan, dwg no. DA1 1.5 | J | 12 April 2025 | | iv. Landscape Calculation, dwg no. DA1 1.6 | J | 12 April 2025 | | v. GFA Calculations, dwg no. DA1 1.7 | J | 12 April 2025 | | vi. Construction & Waste Mgmt. Plan, dwg no. DA1 1.8 | J | 12 April 2025 | | vii. Demolition Plan, dwg no. DA1 1.9 | J | 12 April 2025 | | viii. Front Fence, dwg no. DA1 1.11 | J | 12 April 2025 | | ix. Ground Floor Plan – DW1, dwg no. DA2 2.1 | J | 12 April 2025 | | x. First Floor Plan – DW1, dwg no. DA2 2.2 | J | 12 April 2025 | | xi. Roof Plan – DW1, dwg no. DA2 2.3 | J | 12 April 2025 | | xii. Pool Plan, dwg no. DA2 2.4 | J | 12 April 2025 | | xiii. Elevations DW1, dwg no. DA2 3.1 | J | 12 April 2025 | | xiv. Elevations DW1, dwg no. DA2 3.2 | J | 12 April 2025 | | xv. Sections – DW1, dwg no. DA2 4.1 | J | 12 April 2025 | | xvi. Sections – DW1, dwg no. DA2 4.2 | J | 12 April 2025 | | xvii. Window & Door Schedules – DW1, dwg no. DA2 5.1 | J | 12 April 2025 | | xviii. External Materials & Finishes – DW1, dwg no. DA2 5.3 | J | 12 April 2025 | | xix. Garage Floor & Pool Plan – DW2, dwg no. DA3 2.1 | J | 12 April 2025 | | xx. Ground Floor Plan – DW2, dwg no. DA3 2.2 | J | 12 April 2025 | | xxi. First Floor Plan – DW2, dwg no. DA3 2.3 | J | 12 April 2025 | | xxii. Roof Plan – DW2, dwg no. DA3 2.4 | J | 12 April 2025 | | xxiii. Elevations DW2, dwg no. DA3 3.1 | J | 12 April 2025 | | xxiv. Elevations DW2, dwg no. DA3 3.2 | J | 12 April 2025 | | xxv. Sections – DW2, dwg no. DA3 4.1 | J | 12 April 2025 | | xxvi. Sections – DW2, dwg no. DA3 4.2 | J | 12 April 2025 | | xxvii. Window & Door Schedules – DW2, dwg no. DA3 5.1 | J | 12 April 2025 | | xxviii. External Materials & Finishes – DW2, dwg no. DA3 5.3 | J | 12 April 2025 | | xxix. Shadows 21 June – 900hrs, dwg no. DA 8.1 | J | 12 April 2025 | | xxx. Shadows 21 June – 1000hrs, dwg no. DA 8.2 | J | 12 April 2025 | | xxxi. Shadows 21 June – 1100hrs, dwg no. DA 8.3 | J | 12 April 2025 | | xxxii. Shadows 21 June – 1200hrs, dwg no. DA 8.4 | J | 12 April 2025 | | xxxiii. Shadows 21 June – 1300hrs, dwg no. DA 8.5 | J | 12 April 2025 | | xxxiv. Shadows 21 June – 1400hrs, dwg no. DA 8.6 | J | 12 April 2025 | | xxxv. Shadows 21 June – 1500hrs, dwg no. DA 8.7 | J | 12 April 2025 | | xxxvi. Shadows 21 June – 1500hrs DW2 only, dwg no. DA 8.8 | J | 12 April 2025 | | 2. | Landscape Plans prepared by Studio 92 | | i. Roseville Landscape Design, dwg no. 01. Maintenance Schedule | B | 7 April 2025 | | ii. Roseville Landscape Design, dwg no. 02. Existing Layout | B | 7 April 2025 | | iii. Roseville Landscape Design, dwg no. 03. Proposed Subdivision Line | B | 7 April 2025 | | iv. Roseville Landscape Design, dwg no. 04. Proposed Landscaping | B | 7 April 2025 | | v. Roseville Landscape Design, dwg no. 05. Proposed Planting | C | 8 May 2025 | | 3. | Stormwater Plans prepared by Quantum Engineers | | i. Details, Notes & Legend, dwg no. SW101 | A | 27 March 2025 | | ii. Stormwater Layout Plan – Part 1, dwg no. SW201 | A | 27 March 2025 | | iii. Stormwater Layout Plan – Part 2, dwg no. SW202 | A | 27 March 2025 | | iv. Roof Plan, dwg no. SW203 | A | 27 March 2025 | | v. OSD Tanks & Rainwater Tank Details, dwg no. SW301 | A | 27 March 2025 | | vi. Stormwater Details, dwg no. DW302 | A | 27 March 2025 | | vii. ‘OSD’ Drains Model Layout & Results, dwg no. SW401 | A | 27 March 2025 | | viii. OSD Catchment Plan, dwg no. SW402 | A | 27 March 2025 | | ix. Easement Drainage ‘HGL’ Longsection – 1% AEP | A | 27 March 2025 | | 4. | Driveway Plans prepared by Quantum Engineers | | i. Details, Notes & Legend, dwg no. D1 | A | 27 March 2025 | | ii. Driveway Plan, dwg no. D2 | A | 27 March 2025 | | iii. L/S 1 – Driveway Longsection (Without gutter crossing) - Part 1, dwg no. D3 | A | 27 March 2025 | | iv. L/S 1 – Driveway Longsection (With gutter crossing) – Part 1, dwg no. D4 | A | 27 March 2025 | | v. L/S 1 – Driveway Longsection (With gutter crossing) – Part 2, dwg no. D5 | A | 27 March 2025 | | vi. L/S 1 – Driveway Longsection (With gutter crossing) – Part 3, dwg no. D6 | A | 27 March 2025 | | vii. L/S 1 – Driveway Longsection (With gutter crossing) – Part 4, dwg no. D7 | A | 27 March 2025 | | viii. L/S 2 – Driveway Longsection (With gutter crossing) – Part 1, dwg no. D8 | A | 27 March 2025 | | ix. L/S 2- Driveway Longsection (With gutter crossing) – Part 2, dwg no. D9 | A | 27 March 2025 | | x. L/S 2 – Driveway Longsection (With gutter crossing) – Part 3, dwg no. D10 | A | 27 March 2025 | | xi. L/S 2 – Driveway Longsection (With gutter crossing) – Part 4, dwg no. D11 | A | 27 March 2025 | | xii. L/S 3 – Front of Footpath Longsection (Part 1), dwg no. D12 | A | 27 March 2025 | | xiii. L/S 3 – Front of Footpath Longsection (Part 2), dwg no. D13 | A | 27 March 2025 | | xiv. L/S 4 – Driveway Longsection, dwg no. D14 | A | 27 March 2025 | | xv. L/S 5 – Driveway Longsection, dwg no. D15 | A | 27 March 2025 | | xvi. Swept Path (Street to Lot 2 Garage), dwg no. D16 | A | 27 March 2025 | | xvii. Swept Path (Lot 2 Garage to Street), dwg no. D17 | A | 27 March 2025 | | xviii. Swept Path (Street to Lot 1 Garage), dwg no. D18 | A | 27 March 2025 | | xix. Swept Path (Lot 1 Garage to Street), dwg no. D19 | A | 27 March 2025 | | xx. Vehicular Footpath Crossing and Kerb & Gutter Details, dwg no. D20 | A | 27 March 2025 | | xxi. Grated Channel Crossing Details, dwg no. D21 | A | 27 March 2025 | | 5. | Cut and Fill Plans prepared by New Horizon Group Australia | | i. Project Specific Notes, dwg no. NH-000 | 1 | 25 March 2025 | | ii. Cut Fill Plan, dwg no. NH-010 | 1 | 25 March 2025 | | 6. | Subdivision Plan prepared by C & A Surveyors ref: 16270-21 PS V1 | - | 24 March 2025 | | 7. | Heritage Letter prepared by Weir Phillips Heritage and Planning | - | 26 March 2025 | | 8. | Addendum to Statement of Environmental Effects prepared by aSquare Planning Pty Ltd | - | 27 March 2025 | | 9. | Town Planning Report prepared by aSquare Planning Pty Ltd | - | 27 March 2025 | | 10. | BASIX Certificate (accompanied by NatHERS certificate for Dwelling 1 (cert no. HR-2VD8G4-02) and Dwelling 2 (cert no. HR-TL3NFD-02), with summary sheet (cert no. HR-RAW8SM-03)) | - | 9 May 2025 | | 11. | Photo Montage | - | 26 March 2025 | | 12. | Arboricultural Impact Assessment prepared by NSW Trees | B | 28 August 2024 |

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 May 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

7. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 19 September 2024. The Respondent notified the DA from 30 September 2024 to 15 October 2024 where submissions from two individuals were received. As the parties have reached agreement, the Court is limited to jurisdictional matters. The parties confirmed that they have considered the submissions.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

8. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. The parties jointly submit that Ch 6 does not contain any relevant provisions.

9. For the abundance of caution, I have considered Div 2 controls in relation to development generally, ss 6.6, 6.7 and 6.10. The amended DA is accompanied by stormwater plans prepared by Quantum Engineers dated 27 March 2025 and a BASIX Certificate that incorporates reuse of water through the proposed water tank, use of on-site detention tanks, drainage easements and discharge of stormwater into an easement. I accept that the likely impacts on water quality will be neutral or beneficial and that there will be negligible impacts on the total catchment area. I accept that there the other matters in Ch 6 are not impacted given the minor scale of development and location of the site away from waterways, reserves, wetlands, natural habitats or other areas identified in SEPP BC. With consideration of the above and the jurisdictional statement I accept that the provisions of SEPP BC are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The jurisdictional statement and Addendum Statement of Environmental Effects prepared by aSquare Planning (ASEE) detail that the site has a history of residential use, that there is no evidence of potential or actual contamination and is unlikely to be contaminated. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

11. The proposed development is BASIX affected development (s 27 of EPA Reg). The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (1749119M_03) that satisfies the SEPP, including s 2.1(5).

Willoughby Local Environmental Plan 2012

12. The site is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP). The proposed development for dwelling houses are permitted with consent and I have had regard to the relevant objectives of the zone.

13. The parties agree and I accept that the following applicable WLEP provisions are met:

14. Clause 2.6 permits subdivision of the site.

15. Clause 2.7 permits demolition with consent.

16. Clause 4.1 minimum lot size requires a minimum lot size of 550m2. The proposed lots are 643.6m2 and 648.6m2 and comply.

17. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 8.5m. The amended DA, as shown on the architectural plans prepared by Willoughby Architects (architectural plans) confirm that the proposed dwellings are less than 8.5m as shown on the respective elevation and section drawings.

18. Clause 4.4 prescribes a maximum FSR of 0.4:1. Each new lot and its dwelling are below the maximum FSR, at 0.4:1 and 0.38:1 as shown on drawings DA1 1.7 Revision J.

19. Clause 5.10 heritage conservation applies as the site is located within the North Chatswood Heritage Conservation Area (HCA). I accept that the parties have adequately considered the impacts on heritage significance as demonstrated by the Heritage Impacts Assessment prepared by Weir Phillips dated 26 March 2025 (heritage report). The heritage report details the design amendments made in order to minimise impacts on the heritage significance of the HCA. The jurisdictional statement sets out in detail how Council’s heritage concerns have been addressed.

20. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5. However the proposed works are not within 500m of class 1-4 soils that are below 5m AHD. The provisions of subcl 6.1 (2) and (3) do not apply.

21. Clause 6.2 earthworks applies due to the minor extent of earthworks proposed. I accept that the proposed works have addressed the provisions as detailed in the ASEE, civil engineering drawings and various conditions of consent including dilapidation reports, water management, construction management and waste management.

22. Clause 6.3 urban heat applies to the proposed development. With consideration of the ASEE, I accept the parties’ agreement that the amended DA satisfies the provisions through selection of building materials, landscaping, tree canopy, permeable areas, sun protection measures and location of ventilation systems.

Heads of consideration

14. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

15. 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.

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

18. The Court orders:

19. The appeal is upheld.

20. Development Consent is granted to Development Application No 2024/205 for demolition of the existing dwelling and construction of two residential dwellings, garages, Torrens title subdivision and associated works at 45 Darling Street, Roseville NSW 2069 known as Lot 2 in Deposited Plan 596131 subject to the conditions contained in Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A

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