Marks v Willoughby City Council

Texts Cited: Willoughby Community Participation Plan

Category: Principal judgment

Parties: Aidan Austin Marks (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
P Clarke (Solicitor)(Applicant)
G Appleby (Solicitor)(Respondent)
Solicitors:
Hones Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2025/72970

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify development consent DA-2017/484 (the consent). The consent approved alterations and additions to an existing dwelling, including a first floor addition and the carrying out of associated works at 240 Edinburgh Road, Castlecrag.

2. The Modification Application (DA/2017/484/D) seeks consent for the following modifications:

3. Modification of condition 1,

4. Deletion of proposed skylights and first floor window,

5. Internal alterations and additions to the dwelling,

6. First floor extension, roof, terraces and associated works.

7. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

8. At the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 25 June 2024. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Other Modifications: s 4.55(2) of the EPA Act.

Substantially the same development: s 4.55(2)(a) of the EPA Act

6. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify Development Consent No. DA-2017/484. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. That provision contains four preconditions. The first is that the consent authority must be satisfied that the development remains substantially the same development as that approved in the consent.

7. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

8. Quantitatively the modification application results in a development which remains a single residential dwelling.

9. The modification application does not propose any material change to the use, overall appearance, scale or form of the proposed development.

10. I am satisfied that on the basis argued by the applicant, and agreed by the Respondent, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.55(2)(b) of the EPA Act

9. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies. The development application the subject of the consent did not require consultation with other relevant approval bodies. Further, no conditions of the Consent were imposed as a requirement of concurrence of the Minister, or any public authority or approval body. Accordingly, the Modification Application was not required to be referred to any other approval bodies.

10. The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification: s 4.55(2)(c) of the EPA Act

11. The third jurisdictional requirement under s 4.55(2)(c) relates to the notification of the modification application. The Modification Application was notified in accordance with the requirements of the EPA Act, the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and the Willoughby Community Participation Plan. One submission was received.

Consideration of submissions: s 4.55(2)(d) of the EPA Act

12. The fourth jurisdictional requirement under s 4.55(2) is the requirement for the consent authority to consider any submission made concerning the Modification Application. The concerns raised following the notification of the modification application include:

13. Excessive height and floor space,

14. Setbacks and character,

15. Tree removal and landscaping, and

16. Drainage concerns, in particular stormwater management and adequacy of information provided.

17. As detailed in [5], in circumstances where the parties have reached agreement in proceedings the role of the Court is to ensure that the decision agreed is one which the Court could have made in the proper exercise of its functions. In this case the relevant matter to be satisfied is that the submissions have been considered in accordance with s 4.55(2)(d) of the EPA Act. I accept the agreement of the parties that the submission has been considered. The modification application has been amended, in part to address concerns expressed in the submissions received. The requirements of s 4.55(2)(d) of the EPA Act are met

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act

14. Pursuant to s 4.55 (3) of the of the EPA Act in determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. My consideration of those matters is detailed below.

15. I accept the Respondent’s assessment, and the parties’ agreement, that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

16. The consent incorporated a requirement for the development to be implemented in accordance with the applicable BASIX certification. A revised BASIX Certificate has been prepared in respect of the Modification Application and is current. The requirements of cl 100(3) of the EPA Regulation are met.

17. The site is zoned C4 -Environmental Living pursuant to the Willoughby Local Environmental Plan 2012 (LEP 2012) and dwelling houses are permissible with consent. The Modification Application maintains a permissible use.

18. None of the development standards in Part 4 of LEP 2012 apply to the development proposed in the Modification Application.

19. None of the miscellaneous provisions in Part 5 of LEP 2012 apply to the Modification Application, as the Site is not:

20. intended to be acquired for public purposes;

21. proposed to be used for any purpose other than residential use;

22. below the mean high water mark;

23. within or adjacent to a Heritage Conservation Area; or

24. within either a bushfire risk zone or a flood risk area;

25. None of the additional local provisions in Part 6 of LEP 2012 apply as:

26. The Site is 5 metres AHD and the Works do not propose to lower the water table;

27. No earthworks or signage are proposed on the Site;

28. The Site is not within a foreshore area;

29. The Site is not in proximity to Sydney Airport;

30. The Site is not zoned Zone B2 Local Centre, Zone B3 Commercial Core and Zone B4 Mixed Use or identified on the Special Provisions Area Map under LEP 2012; and

31. Affordable housing, serviced apartments, certain residential accommodation or licenced sex services premises are not proposed on the Site.

Conclusion

21. 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

22. The Court orders that:

23. Leave is granted to the Applicant to amend Modification Application DA-2017/484/D and rely on the amended architectural plans listed in the final table of Condition 1 in Annexure A.

24. The appeal is upheld.

25. Development Consent DA-2017/484/C is modified subject to the conditions of consent set out at Annexure A.

26. Development Consent DA-2017/484/D (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

D Dickson

Commissioner of the Court

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72970.25 Annexure A (131 KB, pdf)

72970.25 Annexure B (306 KB, pdf)