Watermark Chatswood Pty Ltd v Willoughby City Council

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.7, 7.13
Civil Procedure Act 2005 (NSW), ss 64, 65
Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34, 34AA
Biodiversity Conservation Regulation 2017 (NSW), cl 7.2
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Willoughby Local Environmental Plan 2012, cl 6.2

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

Texts Cited: NSW Government, Planning for Bush Fire Protection, November 2019

Category: Principal judgment

Parties: Watermark Chatswood Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
T Neal (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Colin Biggers Paisley (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/00263097

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a dual occupancy at 128A Beaconsfield Road, Chatswood. The development application was refused by the respondent on 22 April 2025. The appeal against that decision is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 9 December 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the 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 reflects that which was filed on 7 December 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulations 2021). The amendments include a widening of the driveway to improve sightlines, details around access to the respondent’s infrastructure, and changes to the carport to prevent it overhanging the area of a stormwater easement.

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 an Agreed Statement of Jurisdictional Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (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:

6. The development works are for the purpose of a dual occupancy, which is a permissible use in the C4 Environmental Living zone in which the works are proposed, pursuant to the Willoughby Local Environmental Plan 2012 (WLEP). The driveway will be constructed in the RE2 Private Recreation zone, where roads are permissible with consent.

7. The proposed development complies with the development standards in the WLEP for floor space ratio, height and minimum lot size for dual occupancy development.

8. The development application includes earthworks. Based on the geotechnical assessment report dated 21 April 2023 and the letter from the NSW Government Premier and Cabinet dated 26 May 2021, I have considered the matters set out in cl 6.2(3) of the WLEP.

9. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the site validation report dated 15 November 2022, I am satisfied that the site has been remediated and is suitable for the proposed use.

10. Section 4.14 of the EPA Act applies to the site, as it is mapped as bush fire prone land. Based on the Bushfire Hazard Assessment by Blackash Bushfire Consulting dated 27 June 2023, I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a).

11. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(1) of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (NSW) (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the Biodiversity Development Assessment Report dated 16 June 2023 (BDAR). The BDAR concludes that the proposed development avoids and minimises its impact by siting the built form in a highly disturbed area of the site. It also concludes that the site does not contain threated flora species or endangered ecological communities, and that biodiversity credits will offset any impacts on predicted threatened fauna species and on the Sydney Coastal Sandstone Foreshores Forest. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

12. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 26 November 2025.

13. The development application was notified between 6 and 27 September 2023, and one written submission was received. An amended development application was notified from 20 January to 4 February 2025, and six submissions were received. I have considered the issues raised in each of the written submissions received over both periods of notification.

14. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

15. 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 judgment on the matters that were originally in dispute between the parties, or 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.

16. The Court notes:

17. Willoughby City Council, as the relevant consent authority has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No. DA-2023/213 in accordance with the amended material identified at Annexure B.

18. The Court orders that:

19. Pursuant to sections 64(4) and 65(2)(b) of the Civil Procedure Act 2005 (NSW), the name of the Applicant listed in the Class 1 Application is amended from "Watermark Chatswood Partnership" (ABN 93 201 007 920) to "Watermark Chatswood Pty Ltd" (ACN 614 145 407).

20. The appeal is upheld.

21. Development consent is granted to Development Application No. DA-2023/213 as amended in accordance with the plans and reports documented at Annexure A for the removal of 3 trees & minor prune of 1 tree, site works, construction of an attached dual occupancy with detached carport, new internal driveway to connect Lot 10 DP 1280577 (128A Beaconsfield Road, Chatswood) to Lot 21 and Lot 22 DP 1312902 (128 Beaconsfield Road, Chatswood) village/club driveway, fencing, landscaping and stormwater management, at 128A Beaconsfield Road, Chatswood NSW 2067, being Lot 10 DP 1280577, as well as at part Lot 21 and Lot 22 DP 1312902, subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

Annexure A (419 KB, pdf)

Annexure B (110 KB, pdf)

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