Jamison v Willoughby City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 4.15, 4.16, 4.17, 8.7, 8.10, 8.11
Land and Environment Court Act 1979 (NSW) ss 17, 34
Environmental Planning and Assessment Regulation 2021 ss 23, 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, Pt 6.2
State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
Willoughby Local Environmental Plan 2012 cll 2.3, 2.6, 4.1, 4.4, 4.6, 5.10, 5.21, 6.1, 6.10, 6.2, 6.3

Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited: Willoughby Development Control Plan 2023

Category: Principal judgment

Parties: Thomas William Jamison (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
D Havadjia (Solicitor) (Respondent)
Solicitors:
MillerPrince (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/431467

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicant appeals Willoughby City Council’s (Council) deemed refusal of Development Application No DA2024/10 (DA) for the realignment of a boundary between existing Lot 1 in Deposited Plan 719119 (16 Salisbury Road Willoughby) and Lot 2 in Deposited Plan 719119 (18 Salisbury Road Willoughby) to create two new Torrens title lots and minor internal alterations and additions to the existing semi-detached dwellings (Site).

2. The proceedings have been brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and in accordance with the time provisions in ss 8.11(1) and 8.10(1)(a) of the EPA Act.

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC) Act.

4. The statutory power or function to be exercised by the court is s 4.16(1) of the EPA Act.

5. The DA includes the following (Council’s Amended Statement of Facts and Contentions filed 4 February 2025, pp 1-63) (SOFAC):

6. Retention of the semi-detached dwellings (two dwellings).

7. Demolition of boundary fencing, rear garage and key kitchen elements such as the stove at 16 Salisbury Road.

8. Change of use of the existing semi-detached dwellings into a single dwelling house.

9. Boundary re-alignment to change the lot size of two existing lots into two new Torrens title allotments, which are to facilitate the following built forms:

(a) 16 Salisbury Road (proposed Lot 11): This lot would comprise the two semi-detached dwellings changed into one dwelling, (b) 18 Salisbury Road (proposed Lot 10): This lot would become a vacant allotment for the purpose of a future dwelling to be constructed.

5. The re-alignments results in 16 Salisbury Road having an area of 307.2m2 (presently 495m2), and 18 Salisbury Road having an area of 440.8m2 (presently 253m2).The DA does not include the construction of a new dwelling on proposed Lot 10. However, a concept building forms part of the DA to demonstrate that the proposed Lot 10 can accommodate a compliant dwelling.

6. Figure 6 from Council’s SOFAC showing (1) existing lot layout and (2) proposed lot layout:

7. Vehicular access to both lots via Salisbury Lane is to occur via to the rear.

8. A new concept stormwater design is proposed that will drain the existing dwelling and the future dwelling to Council’s stormwater network in both Salisbury Road and Salisbury Lane.

9. Tree removal, landscaping and earthworks do not form part of this DA.

10. The Site is shown in Figure 1 below:

Figure 1: Overhead view of the Site (Source Nearmaps) from SOFAC p 4.

1. The Site, and the land immediately surrounding the Site to the east, south, north and west are zoned R2 Low Density Residential (R2 Zone) pursuant to the Willoughby Local Environmental Plan 2012 (WLEP 2012) Land Zoning Map.

2. The locality is characterised by low profile one and two story single dwellings as viewed from the public domain, with an established street tree canopy. Surrounding dwellings are predominantly made up of a mix of brick veneer and render with a mix of pitched metal and tiled roofs with established front gardens and front fencing.

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 6 and 28 May 2025, and 3 July 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 upholding the appeal and granting consent to the DA subject to the conditions of consent in Annexure A.

5. 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. The parties’ decision involves the Court exercising the function under s 4.16(1) of the EPA Act to uphold the appeal and grant consent to the DA subject to Annexure A. 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 they have been satisfied as set out below:

6. The DA was lodged with Council by the Applicant on 24 May 2024.

7. The appeal falls under s 8.11(1) of the EPA Act as the Applicant relies upon the deemed refusal of the DA.

8. Landowners’ consent for 16 Salisbury Road was given by Michaela Jamison on 3 July 2025, and for 18 Salisbury Road by Elizabeth Sandstaf and Richard Karl Pfeil on 25 April 2025, and filed with the Court on 3 July 2025.

9. Council is the consent authority for the DA pursuant to s 4.5 of the EPA Act.

10. The proceedings were commenced on 20 November 2024 in accordance with the time provisions in s 8.10(a) of the EPA Act.

11. Compliance with s 4.15(1)(a) of the EPA Act:

12. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP): Chapter 6 of the BC SEPP contains provisions relating to development within regulated catchments. Chapter 6 applies to the Site as the Site is located in the Sydney Harbour Catchment. Part 6.2 of Ch 6 provides controls for development, and these controls have been considered in the Applicant’s Amended Statement of Environmental Effects by Cityscape dated March 2025 pp 18-20, and Stormwater Managements Drawing No. E305974 Issue E Sheets D1 – D6 dated 3 June 2023.

13. State Environmental Planning Policy (Resilience and Hazards) 2021: Chapter 4, and s 4.6(1) applies to the Site which requires a consent authority must not grant consent to a development unless it has considered whether the site is contaminated, and if it is contaminated that it can be made suitable for use. The Site has historically been used for residential purposes, and based on the historical records there is no suggestion that the Site has been contaminated in the past.

14. State Environmental Planning Policy (Sustainable Buildings) 2022: (BASIX SEPP) the DA involves the alteration of a BASIX building (the two semi-detached buildings returned to one dwelling). As the developments costs are $38,800 which is less than the required $50,000 for the BASIX SEPP to apply, a BASIX Certificate under Ch 2 of the BASIX SEPP is not required.

15. WLEP 2012 applies to the Site.

(a) Subdivision of land is permissible with consent under cl 2.6 of WLEP 2012. (b) Clause 2.3 of WLEP 2012 requires the consent authority to have regard to the objectives of the R2 Zone which are:

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

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

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

• To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

• To retain the heritage values of particular localities and places and to ensure heritage items and conservation areas are not damaged, demolished or otherwise adversely impacted by new development.

• To encourage self-sufficiency with respect to energy and food supply.

5. The DA will facilitate new low density, residential development on land that immediately adjoin similar scaled development. The new Lot 10 will allow for appropriately scaled built form that will provide high amenity building spaces for a future dwelling and without significant adverse impact to existing and adjacent development. The DA is considered to be consistent with the objectives of the R2 Zone.
6. Clause 4.1(3) (minimum subdivision lot size) and the Lot Size Map of WLEP 2012 prescribes a minimum lot size subdivision of 550m2. The DA proposes the creation of two lots with an area of 307.2m2 and 440.8m2 respectively. As these two lot sizes are less than the development standard of 550m2 the Applicant seeks to vary the standard via a cl 4.6 request pursuant to WLEP 2012. The Amended Cl 4.6 Request by Cityscape dated March 2025 (Cityscape cl 4.6 Report) stated:

(a) Lot 10 is a 44% variation of the development standard, and Lot 11 is a 19.9% variation. (b) In applying a variation to the development standard it provides for a better development outcome.

7. Applying the decision of Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where the Court confirmed that properly construed a consent authority has to be satisfied that an applicant’s written request has in fact demonstrated the matter required to be demonstrated by cl 4.6(3) (in this case of WLEP 2012). Cityscape then set out the test in Wehbe v Pittwater Council [2007] NSWLEC 827.

(a) The analysis demonstrates that the existing character of the local areas can be defined as a typical suburban urban form with single dwellings located on smaller scaled lots with open front gardens and relatively generous garden curtilages. “Importantly, this analysis reveals that the subject site is perhaps the anomalous and ‘out-of-character’ element of the urban form with the site providing an irregular lot arrangement and the southern section of the lot providing a large vacant parcel of land that provides a gap in the otherwise closely settled and regular streetscape.” The insertion of the additional built form on the subject site will be more consistent with the spatial distribution of buildings and curtilage areas that currently characterises the local area. The development forms a small and logical infill subdivision that has limited ability to cause adverse impact upon the built environment. It is considered that the subdivision “will maintain the existing subdivision pattern as well as the urban form, and streetscape character of the local area.” (Cityscape cl 4.6 Report pp 13-15) (b) Cityscape’s analysis of the existing lot pattern (approximately 116 lots in Figure 4 on p 19 of the Cityscape cl 4.6 Report) demonstrates that only ten lots comply with the development control of 550m2 per lot, which is approximately 10% of the surrounding lots comply with the development standard. “Accordingly the variation sought is entirely consistent with the existing subdivision pattern, and the surrounding area.” (c) The sufficient environmental grounds include:

(i) An improved heritage outcome for the Site (returning the semi-detached dwellings to a single dwelling), for the reasons stated in the Heritage Impact Statement, the proposed DA will have a positive impact upon the conservation value and heritage significance of the relevant heritage item. (ii) It reinstates the historical subdivision pattern (iii) It is the orderly and economic use of land. (iv) It complies with the objectives of cl 4.1 as set out below:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

“(a) to retain the pattern of subdivision in low density residential and environmental living zones,

(b) to ensure lots have sufficient area for the effective siting of development in order to achieve a good relationship with adjoining dwellings and to provide adequate space for landscaped open space, drainage, parking, residential amenity and other services,

…

(d) to ensure that subdivision does not cause fragmentation of sites that limits potential future uses or redevelopment in accordance with the zone objectives.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.”

(v) It achieves the underlying objectives of the development standard.

8. Clause 4.4 (Floor Space Ratio) (FSR) of WLEP 2012 prescribes a maximum floor space ratio of 0.4:1 for a building on the Site. However, the building on the Site is a local heritage item under WLEP 2012, and cl 4.4(2A) of WLEP provides that there is no maximum FSR development standard for any part of the floor area of a building that is a local heritage item.
9. Clause 5.10 (Heritage conservation) and Sch 5 of WLEP 2012 applies to the Site. The Site contains an item of Local Heritage Significance which is identified as “Semi-detached house (including original interiors) Significance Local” (Item) on the Heritage Map. Clause 5.10(4) of WLEP 2012 requires the consent authority to consider the effect of the proposed development on the heritage significance of the item concerned. The Applicant’s Heritage Impact Statement prepared by Design 5 – Architects Pty Ltd dated 11 Mach 2024 (HIS) provides the following conclusion on p 9:

“The proposed subdivision will reinstate the two semi-detached dwellings as a single detached dwelling, rationalise the shape and sizes of the two lots to be more consistent with the original subdivision, create the opportunity for a new dwelling to infill the ‘missing tooth’ in the streetscape and appropriately increase density in the area. For these reasons, we believe the proposed subdivision will achieve a considerably enhanced heritage outcome for both no.’s 16 & 18 Salisbury Road as well as the streetscape…”

10. Clause 6.1 of WLEP 2012 (Acid Sulfate Soil): The Site is mapped as Class 5 acid sulfate soil. However, there are no proposed works beneath the surface of the Site and therefore not within 500m of class 1-4 soils that are below 5m AHD. The provisions of subcll 6.1(2) and (3) do not apply.

11. Clause 6.3 of WLEP 2012 (Urban Heat) applies to the DA. Having regard to the HIS, this clause does not apply to the existing heritage building. This clause applies to new buildings. The existing heritage item maintains the heritage building materials and ventilation systems.

12. In relation to s 4.15(1)(b) and (c) of the EPA Act, the Amended SEE by Cityscape clearly demonstrates that the DA will have a positive impact on the natural and built environments, by returning the semi-detached dwellings to the original single dwelling, subdividing the Site in accordance with the predominant subdivision pattern in the area, and providing additional housing in a time when lack of housing in Sydney is at a critical level.

13. In relation to s 4.15(1)(d) and (e) of the EPA Act: the DA was notified in accordance with the Council’s Community Participation Plan dated February 2024 from 12 to 28 June 2024. Twenty-two submissions were received during the notification period. I perused the objectors’ submission, and as I commenced the s 34(1) Conciliation Conference pursuant to the LEC Act on site, I invited the objectors to address the Court. One of those objectors was a nearby neighbour.

14. Council and the Applicant’s advisers conferred to reduce the issues in this matter. Subsequently pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council consented to the Applicant amending the DA. Pursuant to s 38(2) and (4) of the EPAR, the Council accepted the amended DA. The Council is satisfied that the Applicant has resolved the contentions in Council’s SOFAC, and that the conditions of consent in Annexure A meet the requirements of s 4.17(1) of the EPA Act, and relevant planning principles.

15. On 25 June 2025 the Council again notified the nearby neighbour that it was now satisfied the DA was in order and pursuant to the LEC Act the parties were entering into a s 34(3) Agreement. The nearby neighbour then filed a further objection dated 27 June 2025. Whilst I understand the near neighbour’s objection to the development (particularly so as for many years there has been a vacant block adjacent to the semi-detached dwellings), he is incorrect in law to state that I cannot uphold cl 4.6 Request to Vary a development standard, and he is also incorrect in stating that Council ‘must’ apply the provisions of cl 2.4, Part H in the Willoughby Development Control Plan 2012 (WDCP 2023). Council is required to consider any submissions made as a result of its notifying the DA. I understand Council has considered the submission dated 27 June 2025 by the nearby neighbour. I also note that the DA complies with objective (1) of cl 2.4, Part H of WDCP 2023, in that it is required to “retain the development and subdivision pattern of heritage conservation areas including their characteristic rhythm and spacing built form”.

16. I am satisfied that the granting of the DA is in the public interest.

17. For the reasons set out above, 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 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.

18. I am not required to consider the merit issues in this matter, and I have not done so.

19. The Court notes:

20. The Respondent, as the relevant consent authority, has approved under ss 37(1) and 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA-2024/105 in accordance with the following amended documents:

| | Title - Reports | Prepared By | Date | | 1 | Amended Clause 4.6 Request to Vary Development Standard – Minimum Lot Size | Cityscape Planning + Projects | March 2025 | | 2 | Amended Statement of Environmental Effects | Cityscape Planning + Projects | March 2025 |

16. The Court orders:

17. The appeal is upheld.

18. The Applicant’s amended written request under cl 4.6 of Willoughby Local Environmental Plan 2012 prepared by Vince Hardy of Cityscape Planning + Projects dated March 2025 seeking a variation of the minimum lot size development standard under cl 4.1 of Willoughby Local Environmental Plan 2012 is upheld.

19. Development consent is granted to Development Application No. DA-2024/105 for the realignment of a boundary between two existing lots to create two new Torrens title lots and minor internal alterations and additions to existing semi-detached dwellings to create a single dwelling house on a single lot on land legally described as Lot 1 in Deposited Plan 719119 and Lot 2 in Deposited Plan 719119, and known as 16 and 18 Salisbury Road Willoughby respectively, subject to Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (369 KB, pdf)

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