Cortese v Willoughby City Council

Texts Cited: Willoughby Development Control Plan 2023

Category: Principal judgment

Parties: Jo-Anne Cortese (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
M Parrino (Solicitor) (Applicant)
G Appleby (Solicitor) (Respondent)
Solicitors:
Project Lawyer (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2024/468863

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA 2024/112/1. The application, as amended, seeks consent for alterations and additions to an existing residential dwelling at 41 Noonbinna Crescent Northbridge (Lot 1 in DP 1249767).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 14 May 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that:

4. Pursuant to s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the development application was made with the consent of the owners of the land.

5. The development application was notified to adjoining and nearby properties between 19 June and 3 July 2024. During the notification period no submissions were received.

6. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. There is no evidence within Council’s records that the land has been used for any purposes listed in table 1 of the Managing Land Contamination Planning guidelines in the State Environmental Planning Policy No 55—Remediation of Land. Further, the parties agree that the historic use of the site was as residential, and it is proposed to remain as residential. This detail in contained in the Statement of Environmental Effects (SEE) accompanying the development application. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

7. Pursuant to Ch 2 of SEPP RH the site is mapped as being within the ‘Coastal Environment Area’, the ‘Coastal Use Area’. Development consent must not be granted to development on land within the Coastal Environment Area unless the consent authority has had regard to the matters listed at cl 2.10(1), and is satisfied that:

2.10 Development on land within the coastal environmental area

…

(a) the development is designed, sites and will be managed to avoid and adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided – the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised – the development will be managed to mitigate that impact.

5. On the basis of the amended plans and the detail in the SEE I accept the agreed submission of the parties that the development application will not impact on the matters listed at s 2.10(1), thus satisfying the requirement at s 2.10(2) of SEPP RH.
6. Further, as the site is also mapped with the Coastal Use Area s 2.11 of SEPP RH applies. Development consent must not be granted to development on land within the Coastal Use Area unless the consent authority has had regard to the matters listed at s 2.11(1)(a), and is (pursuant to cl 2.11(1)(b)) satisfied that:

2.11 Development on land within the coastal use area

…

(i) the development is designed, sites and will be managed to avoid and adverse impact referred to in subsection (a), or

(ii) if that impact cannot be reasonably avoided – the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised – the development will be managed to mitigate that impact and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

7. On the basis of the amended plans and the detail in the SEE I accept the agreed submission of the parties that the development application will not impact on the matters listed at s 2.11(1)(a), thus satisfying the requirement at s 2.11(1)(b) of SEPP RH. Further, in determining the development application I have taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development and determined that the development is appropriate.
8. Section 27 of the EPA Regulation provides that a development application for ‘BASIX affected development’ must be accompanied by a BASIX certificate that was issued no earlier than 3 months before the development application was submitted on the NSW Planning Portal. The proposed development is BASIX development. The development application was lodged with a BASIX certificate, which has been updated by a subsequent certificate that accords with the amended development application. Pursuant to s 2.1(5) of State Environmental Planning Policy (Sustainable Buildings) 2022, development consent must not be granted to the proposed development unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified. I accept the agreed submission of the parties that I can be so satisfied on the basis of the amended BASIX certificate which addresses this requirement.
9. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) addresses vegetation in non-rural areas. The parties agree, and I accept, that the amended development application does not involve removal of any significant or protected vegetation. The requirements of SEPP BC are satisfied.
10. Pursuant to Willoughby Local Environmental Plan 2012 (LEP 2012) the site is mapped as C4 Environmental Living zone. The proposed alterations and additions are to a residential dwelling are permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone: cl 2.3(2) of LEP 2012.
11. The proposed demolition is permitted with consent pursuant to cl 2.7 of LEP 2012.
12. Pursuant to cl 4.3: Height of Buildings the site has a maximum height limit of 8.5m. The amended development is compliant with the height standard.
13. Clause 4.4 (Floor space ratio) and cl 4.4A (Exceptions to floor space ratio) applies to the site and prescribes a maximum floor space ratio (FSR) of 0.4:1. The development application is accompanied by a written request to vary the FSR standard. The written request notes that the proposed alterations and additions will result in an FSR of 0.477:1. I have read the written request prepared by Chapman Planning Pty Ltd, dated 16 April 2025, and in accordance with cl 4.6 of LEP 2012, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2012). I find that the objectives of the FSR standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of LEP 2012). In particular, that the additional floor area is able to be accommodated within the existing building envelope and, as amended, can provide additional amenity without adverse impacts, which is consistent with the objective of the EPA Act to promote the orderly and economic use and development of land. These are sufficient grounds. (c) The state of satisfaction required by cl 4.6 of LEP 2012 has been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR control.

14. The site is identified as being classed as Class 5 acid sulfate soils. In accordance with cl 6.1(2) of LEP 2012, development involving works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land requires development consent. The parties agree, and I accept, that the excavations are minor and do not likely disturb the overall stability of soil or encounter acid sulfate soils, therefore no acid sulfate soils management plan is required pursuant to cl 6.1 of LEP 2012.

15. Clause 6.2 (Earthworks) of LEP 2012 applies to the development application as it proposes minor excavation. In determining the development application, I have considered the matters listed at cl 6.2(3) and I am satisfied that none would warrant the refusal of the development application.

16. Clause 6.3 Urban Heat applies as the development involves alterations and additions to an existing dwelling. In considering the matters at cl 6.3(2) I accept the agreed position of the parties that they are adequately considered in the development application, and none warrant the refusal of the development application.

17. Willoughby Development Control Plan 2023 (DCP 2023) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2023. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

18. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

19. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

20. The Court notes that:

21. The Respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation to the Applicant amending Development Application DA 2024/112 to include the following plans:

| 1. | Architectural Plans prepared by Nova Architecture | | Title Page, dwg no. DA-00 | C | 15 April 2025 | | Demolition Plans, dwg no. DA-01 | C | 15 April 2025 | | Proposed Lower Ground Floor Plan, dwg no. DA-02 | C | 15 April 2025 | | Proposed Ground Floor Plan, dwg no. DA-03 | C | 15 April 2025 | | Proposed First Floor Plan, dwg no. DA-04 | C | 15 April 2025 | | Proposed Roof Plan, dwg no. DA-05 | C | 15 April 2025 | | Site Analysis Plan, dwg no. DA-06 | C | 15 April 2025 | | Sections A-A & B-B, dwg no. DA-07 | C | 15 April 2025 | | Sections C-C & D-D, dwg no. DA-08 | C | 15 April 2025 | | Street & South Elevation & Schedule of Materials and Colours, dwg no. DA-09 | C | 15 April 2025 | | North Elevation, dwg no. DA-10 | C | 15 April 2025 | | East & West Elevation, dwg no. DA-11 | C | 15 April 2025 | | | Area Calculations, dwg no. DA-12 | C | 15 April 2025 | | | Shadow Diagrams – 21 June – 9AM, dwg no. DA-14 | C | 15 April 2025 | | | Shadow Diagrams – 21 June – 12PM, dwg no. DA-15 | C | 15 April 2025 | | | Shadow Diagrams – 21 June – 3PM, dwg no. DA-16 | C | 15 April 2025 | | | Sections E-E & F-F, dwg no. DA-17 | C | 15 April 2025 | | | Sections G-G, dwg no. DA-18 | C | 15 April 2025 | | | Windows and Doors Schedule 1/2, dwg no. DA-19 | C | 15 April 2025 | | | Windows and Doors Schedule 2/2, dwg no. DA-20 | C | 15 April 2025 | | 2. | Landscape Plans prepared by Hortus Design | | Landscape Plan, dwg no. L01 | B | 27 March 2025 | | | Plant Images, dwg no. L02 | B | 27 March 2025 | | 3. | Stormwater Plans prepared by ASCO Engineering | | | Stormwater notes, dwg no. C00 | C | 28 April 2025 | | | Site Stormwater Plan, dwg no. C01 | C | 28 April 2025 | | | Silt & Pollutant Arrestor Pit Detail, dwg no. C02 | B | 23 April 2025 | | 4. | Flood Investigation Report prepared by ASCO Engineering | - | 2 April 2025 | | 5. | Clause 4.6 Request to Development Standard Letter | - | 16 April 2025 | | 6. | BASIX Certificate No. 1792905S | - | 24 April 2025 |

2. The Court notes that the Applicant has filed the document in the preceding table on 7 May 2025.

3. The Court orders that:

4. The appeal is upheld.

5. Development consent is granted to Development Application No. 2024/112 lodged with Willoughby Council on 7 June 2024 seeking consent for alterations and additions to an existing dwelling including a new first floor addition, tree removal and associated works on the land at 41 Noonbinna Crescent Northbridge 2063 known as Lot 1 in Deposited Plan 1249767 subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

Annexure A (225 KB, pdf)

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