Orr v Willoughby City Council

Category: Principal judgment

Parties: Xavier Orr (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
J Cole (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Messenger Code Solicitors (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/244990

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application DA 2024/292 for the construction of a pool, waterslide, carport and storage area with associated landscape works at 18 The Barbette, Castlecrag (Lot 1 in DP 632245) (the site). The Applicant lodged an appeal on 26 June 2025 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of the subject development application by Willoughby City Council.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 27 November 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports, additional information submitted and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Court notes that the Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to include the documents referred to in Condition 1 of Annexure A.

6. The plans and documents comprising the final amended application were submitted to the Court on 27 November 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. In summary, changes made to the proposal to address the contentions include:

(a) Alteration to the storage area to reduce it’s width and length, remove the walls and replace them with an open form palisade balustrade such that views can be retained across the Site and through the carport / storage area. (b) Removal of the dwarf walls on the perimeter of the carport and storeroom and replacement with open form palisade balustrade to improve views across the Site. (c) Improved landscape design including incorporation of native and canopy trees. (d) Improvement to stormwater design to allow drainage via natural channel into the adjacent reserve.

7. The parties advise that the amendments resolved the respondent’s contentions and addressed the matters raised in submissions to the respondent’s satisfaction.

Jurisdictional matters

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. The site is identified as being within the ‘Coastal Environment Area’ and ‘Coastal Use Area’ under State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and accordingly ss 2.10 and 2.11 apply. As required as a precondition of the granting of consent, I am satisfied in respect of the matters outlined at ss 2.10 and 2.11 having regard to the minor nature of the proposed development, the amended stormwater drainage plans (Deboke Engineering, 19 September 2025), the Joint Expert Stormwater Report, and the recommended conditions of consent.

10. I am also satisfied that consideration has been given as to whether the site is contaminated as required by s 4.6 of the RH SEPP and that it is suitable for the proposed development based on the historic use of the site as a residence and the Statement of Environmental Effects prepared by Paro Consulting (March 2024).

State Environmental Planning Policy (Sustainable Buildings) 2022

11. The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. A BASIX Certificate has been submitted prepared by Chen Wang (Cert No. A1791901_02 dated 15 April 2025) as required by s 27 of the EPA Reg. The Court notes that s 2.1(5) of the SB SEPP in respect of embodied emissions does not apply to the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas and it is noted that the proposal seeks consent for tree removal and therefore the provisions of Ch 2 do not apply.

13. The site is located within the Sydney Harbour Catchment regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 Water Quality and Quantity, s 6.7 Aquatic Ecology, s 6.8 Flooding, s 6.9 Recreation and Public Access and s 6.10 Total Catchment Management (in so far as they are applicable) on the basis of the parties’ agreement, the Joint Expert Stormwater Report, the amended stormwater plans (Deboke Engineering, 19 September 2025) and the conditions of consent.

Willoughby Local Environmental Plan 2012

14. The development is for proposed development ancillary to a dwelling housing which is permissible with consent in the C4 Environmental Living zone, in which the site is located, pursuant to Willoughby Local Environmental Plan 2012 (WLEP).

15. I am satisfied that the development has regard to the objectives of the C4 Environmental Living zone as required by cl 2.3 of WLEP.

16. Demolition is permissible with consent in accordance with cl 2.7 of WLEP.

17. Under cl 4.3 of WLEP, a maximum height of 8m applies to the subject land. The proposed water slide has a maximum height of 8.3m and therefore does not comply with this requirement. A variation request in accordance with cl 4.6 of WLEP has therefore been submitted seeking to vary the height of buildings development standard. I am satisfied that consent should be granted notwithstanding the contravention of the height of buildings development standard having regard to the circumstances of the case. In particular I am satisfied that:

18. The written request, dated March 2024 prepared by Paro Consulting, lodged pursuant to cl 4.6 of WLEP adequately establishes sufficient environmental planning grounds that justify the breach in height of buildings development standard.

19. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

20. The site is located within the Griffin Heritage Conservation Area C4 and is in the vicinity of a number of heritage items, therefore cl 5.10 of WLEP applies in respect of heritage and requires an assessment of the impact of the proposal on the heritage significance of the area and any nearby items. Based on the amended plans, the parties’ agreement, the Joint Expert Heritage Report and the conditions of consent, I am satisfied that the proposal will not have an adverse heritage impact.

21. The site is identified as containing Class 5 acid sulfate soils under WLEP however is more than 500m away from class 1, 2, 3 or 4 land therefore no further assessment is required in accordance with cl 6.1.

22. Clause 6.2 earthworks also applies to the amended DA. I accept the parties’ agreement that the provisions of cl 6.2 have been considered as demonstrated in the amended stormwater plans (Deboke Engineering, 19 September 2025), the Joint Expert Stormwater Report, the demolition report (Paro Consulting, May 2024) and the recommended conditions of consent.

23. Clause 6.3 also requires consideration of solar impact and urban heat. Based on the amended plans, proposed tree planting and the parties’ agreement I accept that relevant matters have been considered.

Other Matters

22. The development application is made by the owners of the land in accordance with s 23 of the EPA Reg.

23. The Respondent notified the original development application between 24 December 2024 and 23 January 2025. Two (2) submission were received in response to the notification one in support and one by way of objection. Further, five parties addressed the Court at the commencement of the site view including a number of immediate neighbours and a representative of the Walter Burley Griffin Society. In reaching agreement, the parties have advised that consideration has been given to the matters and concerns raised in the submissions.

Conclusion

24. 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)).

25. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative 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.

Orders

26. The orders of the Court are:

27. The appeal is upheld.

28. Development Application DA 2024292 for the construction of a pool. waterslide, carport and storage area with associated landscape works at 18 The Barbette, Castlecrag (Lot 1 in DP 632245), is determined by the grant of consent subject to the conditions contained in Annexure A.

29. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW) the easement on DP 632245 to drain water, identified as item 4 on certificate of title 1/632245, to which the Respondent is the beneficiary is released.

H Miller

Acting Commissioner of the Court

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Annexure A (645 KB, pdf)