The Trustee for the Carlotta Investment Trust v Willoughby City Council

Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA (433); [1998] NSWSC 163

Category: Principal judgment

Parties: The Trustee for Carlotta Investment Trust (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/437935

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application 2021/399/A (the Modification Application). The Modification Application seeks to modify development consent DA/2021/399 which granted approval for the demolition of an existing dwelling and construction of a new two-storey dwelling, basement garage, swimming pool, landscaping and associated works at 70 Linden Way, Castlecrag (Lot 3 in DP 23276).

2. The Modification Application seeks consent for the following changes:

3. Increase the gross floor area;

4. Make alterations to the ground and first floor;

5. Modify landscaping;

6. Revise the basement layout; and

7. Incorporate a lift and a roof top garden.

8. 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.

9. Following 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 10 June 2025. 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. The agreement is based on an amended Modification Application which includes an increase in setback at the ground floor level, a reduction in the size of the proposed roof terrace and the extend of building elements on the roof level.

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.

Jurisdictional preconditions to consent

5. The jurisdictional prerequisites in s 4.55(2) of the EPA Act include:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

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

6. The Modification Application was made pursuant to s 4.55(2) of the EPA Act.

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. At street level the essence of the building and its key features are retained. The dwelling remains a two-storey dwelling above basement car parking with the main features of the development retained in their approved location;

9. There is no proposed change of use of the building;

10. There are no amendments to the location of the approved access to the property;

11. As amended the Modification Application will provide an additional area of open space on the roof top, but it does so in a matter that retains the amenity of adjoining properties and is not apparent from the streetscape;

12. Whilst internal and external alterations are proposed, the provision of rooms and spaces within the dwelling remains substantially unchanged; and

13. The additional floor space, which generates the increase in floor space ratio (FSR), does not add to the bulk and scale of the dwelling as it is contained within the basement.

14. I am satisfied that on the basis of the amendments made by the Applicant, 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(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.

10. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities.

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

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

12. The third jurisdictional requirement under s 4.55(2)(c) of the EPA Act 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. Seven submissions were received. Further, the Court was addressed at the onsite component of the conciliation conference on 2 June 2025. The parties provided the Court with a record of those oral submissions.

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

13. The fourth jurisdictional requirement under s 4.55(2) of the EPA Act 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:

14. Overlooking and privacy impacts;

15. Excessive height and FSR;

16. Acoustic impacts;

17. Overshadowing;

18. Unclear details in the application of access to the roof top garden, the lift size and the proposed enclosure; and

19. Stormwater management and adequacy of information provided.

20. 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 submissions have 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

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

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. 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 (SEPP RH) have been addressed.

18. The site is mapped as ‘Coastal Use Area’, accordingly the provisions of s 2.10 of SEPP RH apply and I must be satisfied that the development is designed to minimise or avoid any adverse impacts to the matters in ss 2.10(1) and 2.11(1) of SEPP RH. With the assistance of the documents supporting the Modification Application, and giving weight to the limited scope of the modifications, I accept the agreement of the parties that the development does not have an adverse impact on the following:

19. The integrity and resilience of the environment;

20. Coastal environmental values and natural coastal processes;

21. Water quality;

22. Marine vegetation, natural vegetation and fauna and their habitats;

23. Existing public open space and safe access to and along the foreshore;

24. Aboriginal cultural heritage practices and places;

25. The use of the surf zone;

26. Existing, safe access to and along the foreshore, beach etc;

27. Overshadowing, wind funnelling and the loss of views from public places to foreshores;

28. The visual amenity and scenic qualities of the coast, including coastal headlands; and

29. Cultural and built environment heritage.

30. By virtue of being mapped as 'Coastal Environment Area' and 'Coastal Use Area' the site is in the 'coastal zone' (see s 5 of the Coastal Management Act 2016). Sections 2.12 and 2.13 of SEPP RH require that:

31. Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land; and

32. Development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

33. With the assistance of the documents supporting the Modification Application and giving weight to the limited scope of the modifications, I accept the agreement of the parties that the development is not likely to cause increased risk of coastal hazards on the site or other land. No coastal management program applies to the site.

34. The parties agree, and I accept, the Modification Application does not affect the findings of consent authority in the grant of consent that the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) as follows:

35. The site is located within the Sydney Harbour Catchment, accordingly chapter 6 of SEPP BC apply.

36. Pursuant to s 6.6 of SEPP BC, stormwater plans have been prepared for the Modification Application which:

(a) Include appropriate controls for treatment and control of stormwater run-off; and (b) Propose a stormwater arrangement has been designed to improve the quality of stormwater and minimise pollutant transfer to receiving waters.

3. The Modification Application does not affect the findings of the consent authority in the grant of consent that pursuant to s 6.7 of SEPP BC, the development:

(a) Will not have an impact on terrestrial, aquatic or migratory animals, vegetation, or aquatic reserves; (b) Will not involve the clearing of riparian vegetation; (c) Is designed to minimise stormwater runoff and will therefore minimise or avoid the erosion of land abutting a natural waterbody or sedimentation of a natural waterbody; and (d) The development is designed to avoid adverse impacts on wetlands and protects aquatic ecology.

4. Pursuant to s 6.8 of SEPP BC, the development will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody or on the natural recession of floodwaters into wetlands or other riverine ecosystem.
5. Pursuant to s 6.9 of SEPP BC, the site is not located in the direct vicinity of any public access points to natural waterbodies and therefore will not have an impact on those areas.
6. Pursuant to s 6.10 of SEPP BC, the development is not likely to have an adverse environmental impact and therefore the Respondent is not required to consult with adjacent or downstream Councils.
7. Pursuant to s 6.11 of SEPP BC the site is not within a natural waterbody in a regulated catchment and the use of the land is residential and there will be no conflict between land uses.
8. The site is within the Foreshores and Waterways Area. The Modification Application does not affect the findings of the consent authority in the grant of consent that pursuant to s 6.28 of SEPP BC, that following the consideration of the following matters the development warrants approval:

(a) The Development protects the natural assets of the Sydney Harbour; (b) The Development promotes the equitable use of the area; (c) The Development will not have an adverse impact on the area; (d) The Development does not change the propose use of the area; (e) The Development has considered the impacts from climate change; (f) The Development does not adversely impact natural landforms or native vegetation in the area; (g) The Development does not adversely impact and avoids damage to aquatic species; (h) The Development does not adversely impact the watercourse; (i) The Development will not impact the current and future demand on the area; and (j) The Development enhances the unique visual qualities of the area.

22. 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.

23. In accordance with cl 4.3 of the LEP 2012, the height of a building on any land is not to exceed the maximum height shown for the land on the ‘Height of Buildings Map’. The site is subject to a maximum height control of 8.4m. The proposal has a maximum height of 11.12m, exceeding the development standard. Although the height of the development as proposed to be modified will exceed the maximum height standard permitted pursuant to cl 4.3 of the LEP 2012, the Applicant is not required to apply for a variation request pursuant to cl 4.6 of LEP 2012 (North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163, (1998) 43 NSWLR 468, (1998) 97 LGERA (433) (North Sydney v Michael Standley)). Further, the parties agree, and I accept, the proposed modification is consistent with objectives of cl 4.3 of the LEP 2012.

24. LEP 2012 allows for a floor space ratio (FSR) of 0.25:1 on the site: cl 4.4 of LEP 2012. The modification application proposes an FSR of 0.66:1. Although the FSR of the development as proposed to be modified will exceed the maximum FSR permitted pursuant to cl 4.4(2) of the LEP 2012, the Applicant is not required to apply for a variation request pursuant to cl 4.6 of LEP 2012: North Sydney v Michael Standley. Further, the parties agree, and I accept, the proposed modification is consistent with FSR objectives pursuant to cl 4.4 of LEP 2012.

25. The Modification Application proposes additional earthworks. A geotechnical report was submitted with the Modification Application prepared by JK Geotechnics and dated 12 March 2024 (the ‘Geotech Report’). The annexed conditions require the works to be completed in accordance with the recommendations of the Geotech Report. I find I can be satisfied with the requirements of cl 6.2 ‘Earthworks’ in LEP 2012.

26. In determining the modification application, I have given consideration to the matters at cll 6.1 ‘Acid Sulphate Soils’ and 6.3 ‘Earthworks’ in LEP 2012.

27. The parties agree, and I accept, that there are no provisions of LEP 2014 that preclude the approval of the Modification Application.

28. 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)).

29. 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.

Notes

30. The Court notes that:

31. Willoughby City Council, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application No. DA-2021/399/A to include the documents set out below:

| TAB | DOCUMENT | DATE | | 1. | Statement of Changes prepared by Zanazan Architectural studio | 3 June 2025 | | 2. | (Amended) Architectural plans prepared by Zanazan Architectural studio: • DN - A001 – Cover Page • DN - A002 – BASIX – Rev 6 – 6 June 2025 • DN - A003 – Site Analysis – Rev A – 1 March 2024 • DN - A100 – Site & roof plan – Rev 5 – 4 June 2025 • DN - A101 – Demolition plan – Rev 5 – 4 June 2025 • DN - A102 – Basement Floor Plan – Rev 5 – 4 June 2025 • DN - A103 – Ground Floor Plan – Rev 5 – 4 June 2025 • DN - A104 – First Floor Plan – Rev 5 – 4 June 2025 • DN - A105 – Roof plan - Terrace – Rev 5 – 4 June 2025 • DN - A106 – Roof plan – Rev 5 – 4 June 2025 • DN - A200 - Elevations & Sections – North- Rev 5 – 4 June 2025 • DN - A201 – Elevations & Section – South – Rev 5 – 4 June 2025 • DN - A202 – Elevations & Sections – West – Rev 5 – 4 June 2025 • DN - A203 – Elevations & Sections – East – Rev 5 – 4 June 2025 • DN - A300 – Elevations & Sections – A-A – Rev 5 – 4 June 2025 • DN - A301 – Elevations & Sections – B-B – Rev 5 – 4 June 2025 • DN - A302 – Sections – Driveway - Rev 5 – 4 June 2025 • DN - A303 – Driveway levels – Rev 5 – 4 June 2025 • DN - A304 – Section N1 – 260 Edinburgh Road – Rev 1 – 28 May 2025 • DN - A305 – Section N2 – 68,72 Linden Way – Rev 1 – 28 May 2025 • DN - A306 – Section N3 – 262 Edinburgh Road – Rev 1 – 28 May 2025 • DN - A307 – Section N4 – 64 Linden Way – Rev 1 – 28 May 2025 • DN - A600 – Area Modification s 4.55 – Area Calculations – Rev 1 – 28 May 2025 • DN - A601 – Area calculation – Rev 5 – 4 June 2025 • DN - A602 – Building profile comparison – Rev 1 – 28 May 2025 • DN - A900 – Shadow Diagrams – Winter Solstice - June 9 am – Rev 1 – 28 May 2025 • DN - A901 – Shadow Diagrams – Winter Solstice - June 12pm – Rev 1 – 28 May 2025 • DN - A902 – Shadow Diagrams – Winter Solstice - June 3pm – Rev 1 – 28 May 2025 • DN - A903 – Shadow Diagrams – Winter Solstice – June 9 am – Rev 1 – 28 May 2025 • DN - A904 – Shadow Diagrams – Winter Solstice – June 12pm – Rev 1 – 28 May 2025 • DN - A905 – Shadow Diagrams – Winter Solstice – June 3pm – Rev 1 – 28 May 2025 • DN - A906 - Height Diagrams – Rev 1 – 28 May 2025 | Various dates | | 3. | (Additional) Owner’s consent | 11 September 2024 | | 4. | (Additional) Vehicle Access Compliance report prepared by Terraffic Pty Ltd | 7 April 2025 | | 5. | (Additional) Geotechnical Investigation prepared by JK Geotechnics | 12 March 2025 | | 6. | (Additional) Noise Impact Assessment prepared by Acoustic Logic | 27 February 2025 | | 7. | (Additional) Acoustic report – Supplementary letter | 16 May 2025 | | 8. | (Additional) Site survey, prepared by Bee & Lethbridge | 31 January 2025 | | 9. | (Additional) Quantity Surveyor’s Estimated Development Cost | 23 May 2025 | | 10. | (Additional) Cut & fill - Bulk Excavation drawings prepared by Smart Structures Australia: • Cover page – Rev A – 28 February 2025 • C01 - Bulk Excavation Layout Plan – Rev B – 4 March 2025 • C02 – Bulk Excavation Layout Plan – Rev C – 1 April 2025 • C10 – Bulk Excavation Section – Rev B – 4 March 2025 • C11 – Bulk Excavation Section – Rev C – 1 April 2025 • C12 – Bulk Excavation Section – Rev C – 1 April 2025 | Various dates | | 11. | (Amended) Landscape plans prepared by Melissa Wilson: • LS00: Cover Page • LS01: Site Plan – Rev F • LS02: Front Garden – Rev F • LS03: Rear Garden – Rev F • LS04: Level 1 – Rev F • LS05: Roof Terrace – Rev F • LS06: Mood Board - Ground Floor – Rev F • LS07: Mood Board - Upper-Level Planters – Rev F • LS08: Plant Species – Rev F • LS09: Notes – Rev F • LS10: Typical Details – Rev F • LS11: Landscape Diagrams – Rev F | 23 April 2025 (Rev F) | | 12. | (Additional) Comparison study between the approved DA and Modification Application | - | | 13. | (Amended) BASIX and NatHERS certificate | 6 June 2025 |

Orders

31. The Court orders that:

32. The appeal is upheld.

33. Modification Application No. DA-2021/399/A, for the modification of Development Consent No DA-2021/399 for the demolition of existing dwelling and construction of a new two-storey dwelling, basement garage, swimming pool, landscaping and associated works at 70 Linden Way, Castlecrag is approved.

34. The Development Consent No. DA-2021/399 is modified in the terms in Annexure A.

35. The Development Consent No. DA-2021/399 as modified by the Court in Annexure B.

D Dickson

Commissioner of the Court

Annexure A (244 KB, pdf)

Annexure B (348 KB, pdf)

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