Vakili v Willoughby City Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Willoughby Community Participation Plan
Willoughby Development Control Plan 2023

Category: Principal judgment

Parties: Hassan Vakili (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
T March (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hones Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/146706

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: The Applicant, Mr Vakili, is one of the owners of 9 The Bastion Road, Castlecrag and proposes to redevelop the site for a new residential dwelling, pool, carport and ancillary works. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the deemed refusal of their development application, DA2024/266, by Willoughby City Council (the Respondent).

2. The development application seeks consent for:

3. Demolition of the existing residential dwelling and site structures.

4. Construction of a new residential dwelling double carport, swimming pool and site landscaping.

5. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 23 and 24 September 2025. I presided over the conciliation conference. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. As part of their agreement, the development application has been amended and the Respondent agrees pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021), to the Applicant amending the development application, as noted at [8].

7. As the presiding Commissioner, I am satisfied that the decision is one 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

8. The development application was lodged by with the Respondent on the 13 November 2024. Owners consent was given to the Applicant for the lodgement of the development application as required by s 23(1) of the EPA Regulation 2021.

9. Between 7 to 21 February 2025, the development application was notified to owners and occupiers of surrounding properties in accordance with the Community Participation Plan. Sixteen submissions objecting to the proposal application were received. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

10. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). I find that s 4.6(1) of SEPP RH is satisfied.

11. The amended development application provides an updated BASIX Certificate as required pursuant to s 27 of the EPA Regulation 2021. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

12. The provisions of Ch 2 and s 2.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) apply to the site.

13. The development application is accompanied by an Arboricultural Impact Assessment prepared by Blues Bros dated 16 June 2025 which assesses the trees and the proposed development and provides recommendations to be complied with during construction. The requirements of Ch 2 of SEPP BC are satisfied. Further, the amended development application includes an Amended Landscape Plan prepared by Edwina Stuart Landscape Design dated 30 July 2025, which offsets tree removal with the planting of replacement tree species.

14. Part 6.2 of SEPP BC applies to the site as it is located within the Sydney Harbour Catchment Area in accordance with the maps in SEPP BC. The provisions of Ch 6 of SEPP BC include jurisdictional prerequisites to be satisfied that relate to the water catchment. In particular those contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. The parties agree, and I accept, that the Court can be satisfied these preconditions are met. In reaching this state of satisfaction, I rely on:

(a) Amended Stormwater Plans prepared by Amuna Civil Engineering dated 24 September 2025. (b) Comprehensive Stormwater Management Plan prepared by Amuna Civil Engineering, Project No ACE24038, Revision 6 dated September 2025 (Stormwater Management Plan). (c) The SEE.

8. I accept the agreement of the parties that I can be satisfied that:

(a) The proposal is supported by the Stormwater Management Plan. The Stormwater Management Plan provides for the collection of roof and surface waters, with on-site detention of stormwater with pollution control including leaf filters, insect and vermin control and first flush devices and silt settling pits, together with rainwater tanks for reuse of stormwater within the site. The stormwater system will provide for a regulated discharge to a level spreader to ensure that the quality of stormwater leaving the site is improved and the development will have a cumulative environmental benefit as a result of the development in the regulated catchment. (b) The proposed Stormwater Management Plan and the included pollution management controls will ensure that the quality of the roof water and surface run-off water from the site will be addressed, with pollutants and silt contained, which will minimise and avoid the transfer of sediment to the surrounding waterbodies. The Civil Plans prepared by Amuna Civil Engineering include sediment and erosion control pit and dispersion change designs that will control construction run-off and post development stormwater flows from the site, which will ensure that the development does not have a direct, indirect or cumulative adverse impact on the aquatic quality of the waterways within the regulated catchment. (c) The development will not impact terrestrial, aquatic or migratory animals or vegetation, does not involve the clearing of aquatic vegetation, and does not impact upon any natural waterbody, wetland or aquatic reserve. The proposed development also keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, will not have a direct, indirect or cumulative adverse impact on aquatic reserves or wetlands and otherwise minimises the erosion of land or the creation of sedimentation impacts. (d) The site is not located within the flood planning area, considered to be flood liable or within proximity of a natural waterbody and is therefore unlikely to impact on periodic flooding that benefits wetlands and other riverine ecosystems or otherwise affect recreational land use or public access to and from foreshores or natural waterbodies. I accept the agreement of the parties that, the proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems. (e) For the purposes of s 6.9 of the SEPP BC, the proposed development does not affect public access to and from natural waterbodies. (f) For the purposes of s 6.10 of the SEPP BC, the proposed development is not likely to have an adverse environmental impact on any adjacent local government area. (g) For the purposes of s 6.11 of the SEPP BC, the proposed development is not located on land within 100 metres (m) of a natural waterbody in a regulated catchment. (h) Further, stormwater control and management are appropriately addressed in conditions in Annexure A.

9. The site is zoned C4 Environmental Living Zone under Willoughby Local Environmental Plan 2012 (LEP 2012). Residential dwellings are permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To ensure that development preserves and enhances the natural features and bushland within the immediate locality (including natural vegetation, geological features, drainage patterns, the water table and the relationship of development to the natural topography) and does not increase bush fire hazard potential.

• To maintain the scale, character and streetscape of individual localities.

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

10. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2012.

11. The amended development application is compliant with the development standards for Maximum Building Height and Floor Space Ratio in LEP 2012.

12. The site is located within the Griffin Heritage Conservation Area (HCA) and is within the vicinity of a heritage item at 23 The Bastion. The Court is assisted by Heritage Experts who prepared evidence in a joint expert report. With the assistance of that evidence and the amendments made to the development application, I have considered the impact of the development application on the significance of the item and HCA. I am satisfied that it is acceptable.

13. Clause 6.1 (Acid Sulfate Soils) provides that development consent is required for the carrying out of works described in the table at cl 6.1(2) on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The site is identified as containing Class 5 acid sulfate soils. However, the proposed development is not located within 500m of Class 1, 2, 3 or 4 land and is not likely to lower the water table below 1m Australian Height Datum. Therefore, I accept the agreement of the parties that an acid sulfate soils management plan is not required. The proposed development complies with cl 6.1 of LEP 2012.

14. Clause 6.2 (Earthworks) provides the consent authority must consider the matters listed in cl 6.2(3). The proposed development seeks consent for earthworks to facilitate construction of the driveway, dwelling and swimming pool. With the assistance of Geotechnical Report prepared by Crozier Geotechnical Consultants, the SEE and the amended Architectural Plans, I accept the agreement of the parties that the proposed development complies with cl 6.2(3) of the LEP 2012.

15. Clause 6.3 (Urban Heat) requires the consent authority, when deciding whether to grant consent, to consider the matters listed at cl 6.3(2) of LEP 2012. With reference to the plans and documents which form the amended development application, I accept the proposed development incorporates effective design and ongoing operation to reduce and remove urban heating from the environment and protect community health and wellbeing.

16. Willoughby Development Control Plan 2023 (DCP 2023) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2023. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

17. 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)).

18. 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. Further, I was not required to make, and have not made, any 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.

Notes

8. The Court notes that Willoughby City Council, as the relevant consent authority, has agreed in accordance with s 37(1) of the EPA Regulation 2021 for the Applicant to amend the development application and rely upon the amended plans and documents in accordance with the documents listed below:

| Document | Date | | 1. | Architectural plans prepared by Marston Architects Plan Name Rev DA01 Cover Sheet G DA02 Site Analysis + Site Plan G DA03 Demolition Plan G DA04 Lower Ground Floor Plan G DA05 Ground Floor Plan G DA06 Driveway Plan G DA07 Roof Plan G DA08 Street & South Elevation G DA09 North Elevation G DA10 East Elevation G DA11 West Elevation G DA12 Section A G DA13 External Finishes & Materials G DA14 Area Calculations – FSR G DA15 Area Calculations – Landscape G DA16 Area Calculations – Private Open Space G DA19 Section B G DA20 Section C G DA21 Excavation Plan G | 23 September 2025 | | Plan | Name | Rev | | DA01 | Cover Sheet | G | | DA02 | Site Analysis + Site Plan | G | | DA03 | Demolition Plan | G | | DA04 | Lower Ground Floor Plan | G | | DA05 | Ground Floor Plan | G | | DA06 | Driveway Plan | G | | DA07 | Roof Plan | G | | DA08 | Street & South Elevation | G | | DA09 | North Elevation | G | | DA10 | East Elevation | G | | DA11 | West Elevation | G | | DA12 | Section A | G | | DA13 | External Finishes & Materials | G | | DA14 | Area Calculations – FSR | G | | DA15 | Area Calculations – Landscape | G | | DA16 | Area Calculations – Private Open Space | G | | DA19 | Section B | G | | DA20 | Section C | G | | DA21 | Excavation Plan | G | | 2. | Landscape plans prepared by Edwina Stuart Landscape Design Plan Name Rev LP 01 Landscape Plan – Ground E LP 02 Landscape Plan – Lower Ground E LP 03 Plant Schedule E | 23 September 2025 | | Plan | Name | Rev | | LP 01 | Landscape Plan – Ground | E | | LP 02 | Landscape Plan – Lower Ground | E | | LP 03 | Plant Schedule | E | | 3. | Driveway Access Design plans prepared by Amuna Civil Engineering Plan Name Rev D1 Title Page & Notes 6 D2 Driveway - Plan 6 D3 Driveway – Long Section - Western 6 D4 Driveway – Long Section - Eastern 6 D5 Driveway Details 6 | 24 September 2025 | | Plan | Name | Rev | | D1 | Title Page & Notes | 6 | | D2 | Driveway - Plan | 6 | | D3 | Driveway – Long Section - Western | 6 | | D4 | Driveway – Long Section - Eastern | 6 | | D5 | Driveway Details | 6 | | 4. | Stormwater Management plans prepared by Amuna Civil Engineering Plan Name Rev S1 Title Page & Notes 6 S2 Management of Stormwater plan - Lower Ground Floor 6 S3 Management of Stormwater plan - Ground Floor 6 S4 Management of Stormwater plan - Roof 6 S5 Management of Stormwater Details page 1 6 S6 Management of Stormwater Details page 2 6 S7 Management of Stormwater Calculations 6 | 24 September 2025 | | Plan | Name | Rev | | S1 | Title Page & Notes | 6 | | S2 | Management of Stormwater plan - Lower Ground Floor | 6 | | S3 | Management of Stormwater plan - Ground Floor | 6 | | S4 | Management of Stormwater plan - Roof | 6 | | S5 | Management of Stormwater Details page 1 | 6 | | S6 | Management of Stormwater Details page 2 | 6 | | S7 | Management of Stormwater Calculations | 6 | | 5. | Geotechnical Report prepared by Crozier Geotechnical Consultants | 30 July 2025 | | 6. | Arboricultural Impact Assessment Report prepared by Blues Bros | 16 June 2025 | | 7. | View Analysis prepared by Marston Architects | August 2025 | | 8. | Letter of advice relating to the turning bay prepared by McClaren Traffic | September 2025 | | 9. | Statement – Detailed Investigation prepared by Gordon Blues | 16 September 2025 | | 10. | BASIX Certificate 1767787S_02 | 18 September 2025 |

Orders

9. The Court orders that:

10. The appeal is upheld.

11. Development consent is granted to Development Application No DA2024/266 for the demolition of all existing structures including existing dwelling, existing driveway with turning bay and existing vehicular crossing and construction of a new dwelling, double carport, swimming pool, courtyard, landscaping and associated works at 9 The Bastion Road, Castlecrag NSW 2068 also known as Lot 297 DP 13306, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

Annexure A (344 KB, pdf)

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