Wei v Willoughby City Council

Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection (November 2019)

Category: Principal judgment

Parties: Lili Wei (Applicant)
Willoughby City Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Willoughby City Council (Respondent)

File Number(s): 2025/275458

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Willoughby City Council, of Development Application DA-2025/13 which seeks consent for the demolition of an existing dwelling and construction of a new dwelling house, swimming pool and associated site works at 21 Noonbinna Crescent, Northbridge, Lot B in DP 369643.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 4 December 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

6. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the consent of the owner of the land.

8. The application was adequately notified from 24 January to 10 February 2025. Four submissions were received, and three residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. Particular focus was given in the conciliation to amendments relating to the boundary-facing garage wall, privacy and overshadowing impacts, and minimising noise from air conditioning units.

9. The development is mapped as bush fire prone land. Accordingly, the application is accompanied by a Bushfire Assessment Report by Bushfire Hazard Solutions Pty Ltd dated 25 September 2024. A further review dated 4 December 2025 confirms that the amended application complies with Planning for Bushfire Protection 2019, and that the requirements of s 4.14 of the EPA Act are met.

10. The site is mapped as Coastal Environment Area and Coastal Use Area pursuant to s 2.10 and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). From the amended application and the parties’ submission, I accept that the Council has considered the matters listed in s 2.10(1), and that the development is designed, sited and will be managed to avoid an adverse impact of the kind referred to in s 2.10(1). Similarly, I accept the Council’s submission that it has considered the matters listed in s 2.11(1)(a) and is satisfied that the development is designed, sited and will be managed to avoid an adverse impact on any of these matters. Finally, pursuant to s 2.12, I also accept that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.

11. Section 4.6 of the SEPP RH requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects by Minto Planning Services dated 6 December 2024, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the ongoing residential use.

12. The site is located within the Sydney Harbour Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. From the amended application and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

13. Pursuant to s 27 of the EPA Regulation a BASIX certificate, that relates to the development as amended, accompanies the application.

14. The subject site is zoned C4 Environmental Living under the Willoughby Local Environmental Plan 2012 (WLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

15. Pursuant to WLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development exceeds this development standard with a maximum height of 8.733m.

16. Pursuant to WLEP cl 4.6, the applicant has submitted a request to vary the height of buildings development standard, prepared by Minto Planning Services dated 6 November 2025. From this written request, I am satisfied that compliance with the development standard is unreasonable or unnecessary in these circumstances because the proposed development complies with the relevant objectives of the height of buildings development standard, notwithstanding the non-compliance. Further, the applicant has demonstrated there are sufficient environmental planning grounds to justify breaching the development standard because: the proposed variation is the direct result of an existing excavated area on site that artificially alters the natural groundline; the non-compliance is minor in scale and nature, and; the non-compliance does not result in any unreasonable adverse amenity impacts.

17. WLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.25:1. The proposed development complies with this development standard with a maximum FSR of 0.23:1.

18. Pursuant to WLEP cl 6.1, the site is mapped as both Class 2 and 5 on the Acid Sulfate Soils Map, but is not in proximity to any adjacent lands with a higher class, nor will the works be likely to lower the water table below 1 metre Australian Height Datum.

19. Earthworks are proposed in the development to accommodate the lower ground floor. The parties submit, and I accept that the matters listed in WLEP cl 6.2(3) have been considered, as demonstrated by the amended application, and that the earthworks are acceptable pursuant to these provisions.

20. WLEP cl 6.3 provides for matters of urban heat. From the parties’ submission and the amended application, I accept that the matters listed in cl 6.3(2) have been considered and the proposed development has been designed to reduce and remove urban heat through the retention of existing trees, the use of sun shelters and the provision of green infrastructure.

Conclusion

21. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

23. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely on the following additional and amended materials.

| 1. Letter of owner’s consent, dated 6 December 2024. | | 2. Architectural plans (Revision C) prepared by Sandberg Schoffel Architects, dated 30 October 2025 (unless otherwise stated): a) Drawing No. 2024.DA.102 C – Site Plan 1:500 + BASIX Commitments; b) Drawing No. 2024.DA.103 C – Site Plan 1:200 + Bushfire Requirements; c) Drawing No. 2024.DA.104 C – Roof Plan; d) Drawing No. 2024.DA.105 C – First Floor Plan; e) Drawing No. 2024.DA.106 C – Ground Floor Plan; f) Drawing No. 2024.DA.107 D – Lower Ground Floor Plan (dated 4 December 2025); g) Drawing No. 2024.DA.108 C – Pool & Lower Landscaping Plan; h) Drawing No. 2024.DA.109 C – GFA Measurements Proposed; i) Drawing No. 2024.DA.110 C – Landscaped Area Measurement; j) Drawing No. 2024.DA.111 C – Impervious Area Calculation Plan; k) Drawing No. 2024.DA.112 C – Height Compliance Plan; l) Drawing No. 2024.DA.113 C – Cut and Fill Management Plan, dated 31 October 2025; m) Drawing No. 2024.DA.201 C – Elevations SE + SW; n) Drawing No. 2024.DA.202 C – Elevations NE; o) Drawing No. 2024.DA.203 C – Elevations NW; p) Drawing No. 2024.DA.204 C – Elevation + Section NSW; q) Drawing No. 2024.DA.205 C – Sections 01, 02, dated 31 October 2025; r) Drawing No. 2024.DA.206 C – Sections 03, 04, dated 31 October 2025; s) Drawing No. 2024.DA.207 C – 8.5m Height Plane, dated 31 October 2025; t) Drawing No. 2024.DA.208 C – Section 25, dated 31 October 2025; u) Drawing No. 2024.DA.301 C – Entry From Driveway; v) Drawing No. 2024.DA.302 C – North Side 3D View; w) Drawing No. 2024.DA.303 C – North Side 3D View from below; x) Drawing No. 2024.DA.304 C – East Side 3D View; y) Drawing No. 2024.DA.305 C – Context View; z) Drawing No. 2024.DA.306 C – View from North; aa) Drawing No. 2024.DA.307 C – View from Above South Existing; ab) Drawing No. 2024.DA.308 C – View from Above South Proposed; ac) Drawing No. 2024.DA.309 C – Privacy 3D Views; ad) Drawing No. 2024.DA.310 C – View Study 1; ae) Drawing No. 2024.DA.311 C – View Study 2; af) Drawing No. 2024.DA.312 C – View Study 3; ag) Drawing No. 2024.DA.313 C – View Study 4; ah) Drawing No. 2024.DA.401 C – Shadow Diagrams June 21 – 9am, dated 31 October 2025; ai) Drawing No. 2024.DA.402 C – Shadow 3D Views – June – 21 – 9am, dated 31 October 2025; aj) Drawing No. 2024.DA.403 C – Shadow Diagrams – 21 June – 12 noon, dated 31 October 2025; ak) Drawing No. 2024.DA.404 C – Shadow 3D Views – June 21 – 12 noon, dated 31 October 2025; al) Drawing No. 2024.DA.405 C – Shadow Diagrams – June 21 – 3pm, dated 31 October 2025; am) Drawing No. 2024.DA.406 C – Shadow 3D Views – June 21 – 3pm, dated 31 October 2025; an) Drawing No. 2024.DA.407 C – Shadow Diagrams 3D View – June 31 – 9am, dated 31 October 2025; ao) Drawing No. 2024.DA.408 C – Shadow Diagrams 3D View – June 31 – 10am, dated 31 October 2025; ap) Drawing No. 2024.DA.409 C – Shadow Diagrams 3D View – June 31 – 11am, dated 31 October 2025; aq) Drawing No. 2024.DA.410 C – Shadow Diagrams 3D View – June 31 – 12 noon, dated 31 October 2025; ar) Drawing No. 2024.DA.411 C – Shadow Diagrams 3D View – June 31 – 1pm, dated 31 October 2025; as) Drawing No. 2024.DA.412 C – Shadow Diagrams 3D View – June 31 – 2pm, dated 31 October 2025; and at) Drawing No. 2024.DA.413 C – Shadow Diagrams 3D View – June 31 – 3pm, dated 31 October 2025. | | 3. Landscape plans (Revision 4) prepared by Studio 151 Landscape Architecture, dated 4 December 2025: a) Drawing No. LDA000 – Cover Page; b) Drawing No. LDA100 – Landscape Plan – Ground Floor; c) Drawing No. LDA101 – Landscape Plan – Lower Ground Floor 1; and d) Drawing No. LDA200 – Planting Palette. | | 4. Site Plan Showing Selected Levels and Detail & Boundary Identification Survey reference number 62684 (Issue C) prepared by Hill and Blume, dated 10 October 2025. | | 5. Clause 4.6 Exceptions to Development Standards (Height of Buildings) prepared by Minto Planning Services, dated 6 November 2025. | | 6. Arboricultural Impact Assessment prepared by Selena Hannan Landscape Design, dated 31 October 2025. | | 7. Aboriginal Heritage Information Management System (AHIMS) Search Report generated on 1 September 2025. | | 8. Aboriginal Heritage Information Management System (AHIMS) Extensive Search – Site List Report generated on 1 September 2025. | | 9. NSW Land Registry Services title search for folio B/369643. | | 10. Deposited Plan 369643. | | 11. Amended BASIX Certificate number 1776168S_02 prepared by Bonnefin Consulting Pty Ltd, dated 4 December 2025. | | 12. BASIX Materials Index prepared by Certified Energy, no date. | | 13. NatHERS Certificate No. 0012501896 prepared by Certified Energy, dated 4 December 2025. | | 14. Bushfire Assessment Memo prepared by Building Code & Bushfire Hazard Solutions, dated 4 December 2025. |

2. The Applicant provided the Court with the abovementioned materials (with the consent of the Respondent) on 4 December 2025.

3. The Court orders:

4. The appeal is upheld.

5. Development application number DA-2025/13, as amended, for the demolition of existing dwelling and construction of a new dwelling house, swimming pool and associated works on land identified as Lot B in Deposited Plan 369643, known as 21 Noonbinna Crescent, Northbridge NSW 2063 is determined by the grant of development consent, subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

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Annexure A.316 KB.pdf