Stefanovic v Willoughby City Council

Parties: Jasmine Isabelle Stefanovic (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
M Parrino (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/68831

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent DA-2023/78 granted by the Court in the matter Stefanovic v Willoughby City Council [2024] NSWLEC 1104.

2. On 12 March 2024, the Court granted development consent for demolition of existing dwelling and construction of a new three-storey dwelling, pool and associated site works (the Consent) on land at 44 Sunnyside Crescent, Castlecrag NSW 2068, known as Lot 175 in DP 13097 (the Site).

3. On 20 February 2025, the Applicant filed the Application Class 1 seeking to modify the Consent to provide for internal and external modification at the Site.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, over which I presided on 11 April 2025.

5. 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 approving the modification of development consent subject to conditions.

6. 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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify a development consent granted by the Court.

8. 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 to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

9. The Modification Application was publicly notified by the Respondent to adjoining and surrounding properties between 11 and 25 March 2025. One submission was received raising a concern with the reflectivity and glare from the roof along the southern and eastern aspect of the proposed development due to the change in materials and angle. A condition of consent (condition 46A) is agreed by the parties to deal with the roof materiality to mitigate against reflectivity and glare.

10. On 2 April 2025, the Applicant provided amended plans to the Respondent addressing the issues identified informally by the Respondent. The parties and their respective experts agree that the Amended Modification Application has resolved all issues in dispute, and in those circumstances, the Amended Modification Application should be settled pursuant to the Agreement, subject to conditions of consent.

11. Section 4.55(2) of the EPA Act empowers a consent authority, on application being made by any person entitled to act on a consent granted by the consent authority, to modify a consent, provided that the consent authority is satisfied 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.

12. The parties agree that the Amended Application is substantially the same development as the development for which consent was originally granted, and before that consent as originally granted was modified. Nonetheless, the Court must be satisfied that the agreement is one that it could lawfully make. The proper approach to the application of s 4.55(2) of the EPA Act is set out by Preston CJ in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [26] and [27]:

“26 … The test in s 4.55(2)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]. This comparison can involve “an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context”: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.

27 That is not to say that the decision-maker cannot, in comparing the two developments, assess the differences in the quantitative and qualitative features of the two developments. Such an assessment might be of assistance in undertaking the comparison between the two developments. But this assessment can not displace the test in s 4.55(2)(a): Feldkirchen Pty Ltd v Development Implementation Pty Ltd at [112].”

13. To assist the Court in applying those principles, the parties provide the following table as to the quantitative comparison analysis extracted from page 22 of the Statement of Environmental Effects (SEE) prepared by Tudor Planning and Design dated February 2025 and filed with the Class 1 Application:

| Item | Existing Consent | Amended Application | Comments | | Levels | 3 | 2 | - | | Bedrooms | 5 | 4 | By virtue of removing the approved second level. | | Bathrooms/Ensuites | 3 | 3 | - | | Powder room(s) | 1 | 1 | - | | Double car space (garage) | 1 | 1 | Unchanged. | | Driveway | 1 | 1 | Unchanged. | | Outdoor area(s) / lawn(s) | 2 | 2 | Same location and almost identical size as approved. | | Alfresco covered area | 1 | 1 | Same location and almost identical size as approved. | | Pool | 1 | 1 | Unchanged. | | Landscaped area | circa 240sqm | circa 240sqm | Same location and almost identical size as approved. | | Development footprint (First floor) | 161sqm | 168sqm | Same location and almost identical size as approved (see Figure 4 below). |

14. In undertaking the qualitative comparison analysis, the parties agree to refer to the table in the SEE at page 24 reproduced as follows:

| Qualitative Issues | Application | | How is the appearance of the existing building to be changed when viewed from public places? | At street level the essence of the building and key development features is retained. The building, at street level, presents with a driveway and double garage, a centrally located entry, side entry gate and landscaping. While the second level of the approved development is proposed to be removed, at the street level and pedestrian experience, the second level was never evident. Therefore, the street level pedestrian experience is unchanged. Moreover, there is no change between proposal and the approved development at the immediate street level as the development is viewed from the public domain. | | To what extent, if any, will existing landscaping be removed and how will that affect the setting of the building when viewed from public places? | There is no proposed removal of landscaping from the approved development at street level. There is no change to how the building is viewed from the public domain and experienced at the street level. | | To what extent, if any, will the proposal impact on a heritage item, the curtilage of a heritage conservation area? | The proposal has no impact on any surrounding or nearby LEP listed heritage items or LEP listed heritage conservation area. The site is not listed in the LEP as a heritage item and is not located within a heritage conservation area. | | What is the extent, if any, of any proposed change to the use of the building? | The is no proposed change to the use of the building. The building proposal relates to an approved residential dwelling house and the building will continue to be used as a residential dwelling house. | | To what extent, if any, will the proposed development result in any change to the streetscape in which the building is located? | At street level the essence of the building and key development features is retained. The building, at street level, presents with a driveway and double garage, a centrally located entry, side entry gate and landscaping. The street level pedestrian experience and streetscape are unchanged. | | To what extent, if any, are the existing access arrangements for the building proposed to be altered? | There are no amendments proposed to the location of the approved access to the property. The property continues to have access via a driveway and double garage, a centrally located main entry and side entry. | | To what extent, if any, will the outlook from within the existing building be altered as a consequence of the proposed development? | No consequence as a result of the proposal as the location and intent of the private open space areas are unchanged. Moreover, the residential amenity in the main living areas, hence, living room, dining room and kitchen are unchanged. These areas continue to receive excellent solar access in mid-winter, as they have a northerly outlook. From the entry of the property, while the second level of the approved development is proposed to be removed, at the street level and pedestrian experience, the second level was never evident. Therefore, the street level pedestrian experience at the main entry is unchanged. | | Is the proposed demolition so extensive to cause that which remains to lose the characteristics of the form of the existing structure? | Not applicable, as the existing building on the site has been approved to be demolished under DA-2023/78. | | To what extent is the site coverage proposed to be changed? | Generally, the same. Same location and almost identical size as approved. Refer to Figure 4 above for the development footprint comparative analysis. | | To what extent are any existing non-compliance with numerical controls either increased or diminished by the proposal? | The non-compliance with the FSR numerical control (development standard) is slightly diminished, hence, the density of the approved development is reduced by way of the proposal. The proposal is now compliant with the LEP FSR development standard. Notwithstanding this, the reduction in the floor space and scale of the development does not change how the building is experienced by pedestrians at the street level compared to the approved development. In the circumstances, the proposed floor space amendment and relationship to the numerical control is inconsequential to the built form that is achieved with respect to the surrounding context. Hence, there are similar scale developments in the surrounding area. | | To what extent is the building envelope proposed to be changed? | The scale and building envelope is proposed to be changed by removal of the approved second level. Notwithstanding this, the use of the building is the same and rooms within the building are generally the same. Refer to Table 4 above for further numerical assessment. | | To what extent are boundary setbacks proposed to be changed? | The approved setbacks of the building are the same., other than a minor change to the first level ‘L-shaped’ built form setback from the north-eastern boundary, from 6.625 metres to 6.100 metres. | | To what extent will the present numerical degree of landscaping on the site be changed? | No change proposed. | | To what extent will the existing floor space ratio by altered? | The density of the proposal is reduced. The proposal strikes an excellent balance between, scale, bulk, landscaped area and a high quality residential amenity achieved within the development. The reduction in the second level is a result of the proposed removal of the approved second level in the development, which in turn improves solar access in mid-winter to the adjoining property to the south. | | To what extent will there be changes in the roof form? | The proposed amendments to the roof include a change in the construction technique and materials (metal roof in lieu of concrete roof with planters). The proposed amendments result in improved constructability, and alternative architectural finish. These amendments are not evident when viewing the property from the street. | | To what extent will there be alterations to car parking/garaging on the site and/or within the building? | No change proposed to the amount of approved car parking on the site and the garage location and space. | | To what extent is the existing landform proposed to be changed by cut and/or fill to give effect to the proposed development? | No change proposed from the approved development on the site. | | What relationship does the proportion of the retained bear to the proposed development? | The key element proposed to be removed is the approved second level of the development, which relates to the portions of the building. However, in light of the above, the proposal is considered to be ‘substantially the same’ and ultimately the proposal does not generate any greater environmental impacts from those assessed in the original approved development under DA- 2023/78. |

15. Accordingly, the parties consider that the modified development the subject of the Amended Modification Application retains essentially, materially or otherwise possesses the same essence as the Existing Consent: Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [41].

16. Having reviewed the approved plans, filed with the Class 1 Application at Tab 6 and the Proposed Modification, and having considered the quantitative and qualitative comparisons reproduced above, I have formed the positive opinion that the Proposed Modification is substantially the same as the consent as originally approved.

17. The Site is mapped as bushfire prone land on a map certified under s 10.3(2) of the EPA Act and the revised general terms of approval (GTAs) from the Rural Fire Service are incorporated into the proposed conditions of consent.

18. Owner’s consent has been obtained for the Amended Modification Application by letter dated 2 April 2025 a copy of which has been provided to the Court.

19. The proposed development is BASIX affected for the purposes of the definition in the Dictionary to Sch 7 of the Environmental Planning and Assessment Regulation 2021*.* The Applicant has provided a revised BASIX Certificate No. 1284353-06 dated 10 April 2025.

20. 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. I adopt the reasons given by the parties as set out in this judgment.

21. 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.

Notations

22. The Court notes that:

23. The Respondent agrees to the Applicant amending, pursuant to s 113(1) of the Environmental Planning & Assessment Regulation 2021, the application to modify Development Application DA-2023/78 lodged with the Land and Environment Court pursuant to s 4.55(8) of the EPA Act , to include the following plans and documents:

| Plans | Rev | Date | | Architectural Plans prepared by Kennon | | i) Coversheet, Drawing No DA000.1 | 2 | 2 April 2025 | | ii) Site Description, Drawing No DA001.1 | 2 | 2 April 2025 | | iii) Site Context, Drawing No DA002.1 | 2 | 2 April 2025 | | iv) Survey Plan, Drawing No DA003.1 | 2 | 2 April 2025 | | v) Streetscape Analysis, Drawing No DA004.1 | 2 | 2 April 2025 | | vi) Demolition Plan, Drawing No DA010.1 | 2 | 2 April 2025 | | vii) FSR Calculations, Drawing No DA051.1 | 2 | 2 April 2025 | | viii) Proposed Site Plan, Drawing No DA090.1 | 2 | 2 April 2025 | | ix) Basement Plan, Drawing No DA099.1 | 2 | 2 April 2025 | | x) Ground Floor Plan, Drawing No DA100.1 | 2 | 2 April 2025 | | xi) First Floor Plan, Drawing No DA101.1 | 2 | 2 April 2025 | | xii) Roof Plan, Drawing No DA103.1 | 2 | 2 April 2025 | | xiii) Proposed Driveway, Drawing No DA104.1 | 2 | 2 April 2025 | | xiv) Landscape Plan, Drawing No DA105.1 | 2 | 2 April 2025 | | xv) Elevations, Drawing No DA200.1 | 2 | 2 April 2025 | | xvi) Street Elevations, Drawing No DA201.1 | 2 | 2 April 2025 | | xvii) Sections, Drawing No DA250.1 | 2 | 2 April 2025 | | xviii) Compliance Envelope, Drawing No DA260.1 | 2 | 2 April 2025 | | xix) Shadow Diagrams, Drawing No DA300.1 | 2 | 2 April 2025 | | xx) Shadow Diagrams, Drawing No DA301.1 | 2 | 2 April 2025 | | xxi) Shadow Diagrams, Drawing No DA302.1 | 2 | 2 April 2025 | | xxii) Materials, Drawing No DA400.1 | 2 | 2 April 2025 | | Reports and Documents | Rev | Date | | Owners Consent form | - | 2 April 2025 | | BASIX Certificate No. 1284353S-06 | - | 10 April 2025 |

Orders

23. The Court orders:

24. The application is approved.

25. Development Consent No. DA-2023/78 granted by the Land and Environment Court on 12 March 2024 is modified as set out in Annexure A.

26. Development Consent No. DA-2023/78, as modified, is contained in Annexure B.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

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