Willoughby Road Pty Ltd v Willoughby City Council

Figure 1: Aerial Image of the Site marked with a red arrow. (Source: Respondent's Statement of Facts and Contentions filed 6 December 2023 ((SOFAC) p3 and Near maps)

Figure 2: Zoning of Site and surrounds (source: SOFAC p4, and NSW Planning Portal Spatial Viewer)

1. As set out in Figure 2 above, the Site and the land immediately north and south are Zone E1 Local Centre under Willoughby Local Environmental Plan 2012 (WLEP 2012).
2. The land east of the Site is a mix of Zone R2 Low Density Residential and R3 Medium Density Residential under WLEP 2012.
3. The Site is situated in the Willoughby South Local Centre, one of the seven original centres of Willoughby. Willoughby Road primarily accommodates one and two storey buildings with shop top housing, many of which are identified as Local heritage items, e.g. the Bridge View Hotel, and the facades of the buildings at 549-553 Willoughby Road.
4. The DA was lodged with Council on 26 September 2023, and on 9 November 2023 the Applicant commenced these proceedings.
5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 June 2024, and 10, 12 and 31 July 2024. I presided over the conciliation conference.
6. 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 upholding the appeal and granting consent to the DA subject to conditions of consent.
7. 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. The parties' decision involves the Court exercising the function under ss 4.16(1) and 4.17(1) of the EPA Act to uphold the appeal, and grant consent to the DA subject to the conditions in Annexure A. 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 and described how they apply as follows: 1. The DA is permissible within the Zone R3 Medium Density, subject to a grant of consent. 2. The parties have reached agreement in relation to amended plans and documents, and agree that the amendments resolve all issues in dispute. In summary the amendments include: 1. Revised basement plan to delete mechanical vehicle manoeuvring; 2. Revised waste room to comply with the Respondent's requirements; 3. Revised floorplan to reflect (a) and (b) above; 4. Addition of deep soil and bulky waste within the Respondent's road reserve on Harris Lane; 5. Addition of privacy screens; and 6. Amendments to front façade in accordance with Respondent's comments. 1. In accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) owner's consent has been given (Tab 2 of the Class 1 Application). 2. The content of the DA satisfied s 24 of the EPA Regulation 2021. 3. The requirements of AS 2601-2001 Demolition of Structures have been considered in accordance with s 61 of the EPA Regulation 2021. Condition 43 of Annexure A requires any demolition must be carried out in accordance with AS 2601-2001. 4. State Environmental Planning Policy (Building Sustainability Index - BASIX) 2004: the DA falls within the meaning of a BASIX affected building in accordance with Sch 7 of the EPA Regulation 2021. The Applicant has provided BASIX Certificate No. 1403005M­­_04 reflecting the amended plans. 5. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Site: 1. Chapter 2 Coastal Management: the Site is not mapped within a Coastal Management Area, and nor is it in proximity to any coastal wetlands or littoral rainforest. Further assessment is not required. 2. Chapter 4 Remediation of Land: s 4.6 of the RH SEPP requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land. The Applicant filed a Preliminary Site Investigation by Ei Australia dated 12 September 2023 which report concludes there is potential for contamination to exist and a Detailed Site Investigation should be carried out. Subject to complying with Conditions 5A and 5B in Annexure A, Ei Australia confirms that the Site can be made suitable for the proposed use in the DA. 1. State Environmental Planning Policy (Housing) 2021 (Housing SEPP): in accordance with s 29 of the EPA Regulation 2021, the DA is: 1. Accompanied by a statement confirming that the qualified designer designed or directed the design of the development; and 2. Explains how the design quality principles are achieved, and how the objectives in Pts 3 and 4 of the Apartment Design Guide have been achieved. (Verification Statement by Mark Shapiro, registered architect, and Design Compliance Statement dated June 2024). 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies: 1. Chapter 2: vegetation in non-rural areas - the DA does not include tree removal, and therefore there is no application of s 2.6. 2. Chapter 4: koala habitat - Willoughby City Council is not listed in Sch 2 and therefore s4.4 of Chap. 4 does not apply. 3. Chapter 6: water catchments (s 6.6 water quality and quantity) - the Site is located in the Sydney Harbour Catchment, and the consent authority must consider the following: 1. Whether the DA will have a neutral or beneficial effect on the quality of water entering a waterway: the DA includes water detention and treatment measures which will ensure that the water entering the catchment is better quality than the current runoff from an unmanaged site. 2. Whether the DA will have an adverse impact on water flow in a natural waterbody: there are no direct flows into a natural waterbody from the Site. 3. Telford Civil's Drawing no. 105 Rev A dated 18 June 2024 confirms that the development will not increase the amount of stormwater runoff from the Site. 4. On-site detention tank, filtration cartridges and filtration basket are used to ensure no negative impact on the level and quality of the water table. 5. In relation to cumulative environmental impact in the regulated catchment, the cumulative impact will remain in accordance with the controls and targets set out in the policy, noting that the modelling demonstrates better water quality than the targets. 6. The DA has been designed used water treatment measures which the modelling demonstrates will achieve the targets sought in relation to the effect on the quality of water entering a natural waterbody being neutral or beneficial; and the impact on water flow in a natural waterbody being minimised. 1. Chapter 6: s 6.7 - Aquatic ecology - the parties have considered the potential detrimental impact on the aquatic ecology and have concluded the DA will not have any unacceptable impact on terrestrial, aquatic or migratory animals or vegetation, nor on erosion as the Site is not located near any natural waterbody, wetlands or littoral rainforest areas. 2. Chapter 6: s 6.8 Flooding - the Site is not considered to be flood liable land. 3. Chapter 6: s 6.9 Recreation and public access the additional dwellings on the Site are part of an area which has been identified for an increase in density. Any small increase in the visitation to the open space and recreational areas is unlikely to have any adverse impact. The DA will not change public access to foreshores, watercourses or water bodies in any way - therefore there will not be any adverse impacts arising from the DA. 4. Chapter 6: s 6.10 - Total catchment management: this provision requires consultation by the Respondent with downstream councils, however, the proposal is not likely to have an adverse impact on the downstream catchment. The proposal is designed to have a beneficial impact on the water flowing from the Site. 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP): In accordance with s 2.119 of the Infrastructure SEPP vehicular access is proposed from Harris Lane at the rear of the Site, the Site having a frontage onto Willoughby Road which is a classified road. A Traffic Impact Assessment Report by PDC Consultants dated 13 September 2023 (p9) confirms the net increase in traffic will have no material impact on the external road network, and the increase in traffic is so minor that it cannot be modelled for its impact on the key intersections. I accept the evidence meets the test in s 2.119 of the Infrastructure SEPP. 2. WLEP 2021 1. Clause 2.3(2) of WLEP 2021 provides: "The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone." 1. The objectives of Zone E1 Local Centre are as follows: * To provide a range of retail business and community uses that serve the needs of people who live in, work in or visit the area. * To encourage investment in local commercial development that generates employment opportunities and economic growth. * To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. * To encourage business, retail, community and other non-residential development in the area. * To provide for services and employment within walking distance of residences. * To generally conserve and enhance the unique sense of place of local centres by ensuring new development - (a) displays architectural and urban design quality, and (b) integrates with the desired character and cultural heritage of local centres. 1. Pursuant to cl 4.3 the Site is subject to a maximum building height of 17m. The Applicant filed a Clause 4.6 Request to vary the height of the DA by Gyde dated September 2023 which found inter alia: 1. The proposed DA has a maximum height of building of 22.03m (RL100.07) as measured from the existing excavated ground level of the swimming pool to the highest point directly above, in the location of the roof terrace. This equates to a 5.03m or 30% variation of the numerical height standard. Most of the bulk and scale of the development is located under the 17m height of building development standard and the extent of the variation can primarily be attributed to the altered levels caused by the swimming pool excavation. The swimming pool has been used by a business training deep sea divers. 2. In summary, the departure from the standard relates to two locations: * Building 1 (fronting Willoughby Road) - the western edge (300mm) and return sections of the planter box and balustrade (700mm) surrounding the roof terrace to Unit 3. * Building 2 (fronting Harris Lane) the roof terrace, associated planter boxes and the southern portion of Unit 7 that includes bedrooms, ensuite, stairs, lift, part study and part dining area (2.7m - 3.059m). The maximum variation of 5.03m as measures from the swimming pool is hidden for the most part and is located inside the outer walls of the southern elevation. 1. "In the circumstances of this Site, the sloping topography has been altered by excavation that includes a swimming pool and significant cut to accommodate the existing ground floor retail use fronting Willoughby Road. …. The extent of the variation clearly follows the altered post developed ground line (i.e., for the most part, the extent of variation represents the equivalent volume and envelope of the excavated swimming pool)." 2. Gyde sets out the five tests in "Wehbe v Pittwater Council [2007] NSWLEC 82 (Wehbe) on pp12-33 of its report, and concludes on p33 that in accordance with Wehbe, Initial Action Pty Limited v Woollahra Municipal Council [2018] NSWLEC 118, Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2019] NSWLEC 245, RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 and SJD DB2 v Woollahra Municipal Council [2020] NSWLEC 1112 at [31] compliance with the Height of building development standard is demonstrated to be unreasonable or unnecessary and the requirements of clause 4.6(3)(a) have been met on this way alone." 3. On pp 33-35 the Gyde report determined there are sufficient planning grounds and public interest to vary the height standard. 4. The DA is in the public interest because it is consistent with the objectives of cl 4.3 and Zone E1 Town Centre as set out in the written request. 5. In its letter dated 5 August 2024 Gyde, it confirms that the amendments to the DA do not impact on the height control in cl 4.3 of WLEP 2021 "Except for the adjusted layout of the fire stairs which merely involved relocating the doors from the eastern to the western side of the fire stair compartments…" 6. I am satisfied that the Applicant has complied with cl 4.6(3)(a) (i) and (ii) being: * (i) the Applicant's written request demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances, and * (ii) there are sufficient environmental planning grounds to justify the contravention of the development standard. 1. Pursuant to cl 4.4 the maximum FSR for the Site is 2:1. The allowable GFA for the Site is 850m2 with the proposed DA achieving a GFA of 847.86m2. The DA is compliance with the FSR control. 2. Pursuant to cl 5.10(2) the Site is not heritage listed and is not within a heritage conservation area. 3. Pursuant to cl 5.21 Flood Planning, the Site is not mapped within the flood planning area. 4. Pursuant to cl 6.1 Acid Sulfate Soils, the Site is located within land that is affected by Class 5 Acid Sulphate Soils but not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum, and accordingly the clause is not enlivened. 5. Clause 6.2(3) Earthworks - the controls have been addressed by: 1. Stormwater plans listed in par [1] of Annexure A; 2. Conditions 7-11, 24, 35, 45, 62-63 of Annexure A. 1. Clause 6.3 Urban Heat: the parties have considered the factors listed in cl 6.3 and agreed that those factors have been met where possible to: * reduce and remove urban heating from the environment; and * protect community health and wellbeing. 1. Clause 6.7 Active Street Frontages: as the DA building to Willoughby Road will have an active street frontage the requirements of this clause have been met. 2. Clause 6.23 Design Excellence: this clause applies to development involving the erection of a new building or external alterations to an existing building on land identified as "Area 5" on the Special Provisions Area Map of WLEP 2021. The DA was considered by a Design Excellence Review Panel and their comments have been addressed in the amended plans together with a written response prepared by Gyde dated 24 June 2024. I am satisfied that the DA as amended exhibits design excellence having regard to the following matters required by 6.23(4): 1. Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved; 2. Whether the form arrangement and external appearance of the development will improve the quality and amenity of the public domain; 3. Whether the development detrimentally impacts on view corridors; 4. As well as the matters raised in 6.3(5). 1. Mark Shapiro Architects filed an Apartment Design Guide Report setting out the apartment design guide compliance checklist, dated 11 September 2023. I am satisfied that the DA meets the criteria of the Apartment Design Guide. 2. The amended plans, documents and conditions agreed between the parties resolve the Council's merit issues. I am not required, and I have not, considered the merit issues. 3. The DA was publicly notified to adjoining and surrounding properties between 10 October 2023 and 31 October 2023. Council received nine submissions. No objectors attended the site view component of the s34(1) conciliation conference to give oral evidence. I am satisfied that the Respondent considered the submissions raised by the objectors.
8. As set out above, 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.
9. 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.
10. I uphold the written request pursuant to s4.6(3) of WLEP 2021 to vary the Height of Buildings control in cl 4.3 of WLEP 2021.
11. I shall uphold the appeal pursuant to s4.16(1) of the EPA Act and s34(3) of the LEC Act, and grant consent to the DA.
12. The Court notes the Council has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of Development Application No. DA 1139/2023/HA in accordance with the following amended plans and documents, and the Applicant filed those plans and documents on 26 July 2024: TAB DOCUMENT DATE Architectural Plans (Up to Rev E) prepared by Mark Shapiro Architects • DA0000 - Coverpage (Rev E) dated 27 June 2024 • DA1000 - Location Plan (Rev A) dated 12 September 2023 • DA1001 - Site Plan (Rev D) dated 25 June 2024 • DA2000 - Ground Floor - Willoughby Rd (Rev E) dated 27 June 2024 • DA2001 - Level 1&2 (Rev E) dated 27 June 2024 • DA2002 - Level 3&4 (Rev D) dated 25 June 2024 • DA2003 - Level 5 & 6 (Rev E) dated 27 June 2024 • DA2004 - Roof Plan (Rev D) dated 25 June 2024 • DA2005 - Adaptable Unit Plan - Type 1 (Rev A) dated 12 September 2023 • DA2006 - Adaptable Unit Plan - Type 2 (Rev A) dated 12 September 2023 • DA2300 - Section A (Rev D) dated 25 June 2024 • DA2301 - Section B&C (Rev D) dated 25 June 2024 • DA2302 - Section D - Driveway (Rev D) dated 25 June 2024 • DA2303 - Section E (Rev D) dated 25 June 2024 • DA2400 - West Elevation - Willoughby Road (Rev D) dated 25 June 2024 • DA2401 - East Elevation - Harris Lane (Rev D) dated 25 June 2024 • DA2402 - South Elevation (Rev D) dated 25 June 2024 • DA2403 - North Elevation (Rev D) dated 25 June 2024 • DA2404 - Internal Elevations (Rev D) dated 25 June 2024 • DA2405 - External Finishes & Materials (Rev D) dated 25 June 2024 • DA2406 - External Finishes & Materials (Rev D) dated 25 June 2024 • DA9000 - GFA Plans (Rev D) dated 25 June 2024 • DA9001 - Landscape and Common Open Space Areas (Rev D) dated 25 June 2024
13. • DA9002 - Storage and Cross Ventilation Plans (Rev D) dated 25 June 2024 Various dates • DA9003 - Private Open Space Plans (Rev D) dated 25 June 2024 • DA9004 - 3D View: Neighbouring Compliant Envelope (Rev D) dated 25 June 2024 • DA9005 - Height Plane Calculation Diagram (Rev A) dated 12 September 2023 • DA9006 - 3D Height Plane (Rev C) dated 9 June 2024 • DA9007 - Compliant Envelope (Rev A) • DA9008 - Waste (Rev E) dated 27 June 2024 • DA9100 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9101 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9102 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9103 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9104 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9105 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9106 - Shadow Diagram (Rev D) dated 25 June 2024 • DA9200 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9201 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9202 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9203 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9204 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9205 - Solar Access Diagram (Rev D) dated 25 June 2024 • DA9300 - Visual Privacy (Rev D) dated 25 June 2024 • DA9500 - Photomontage - Willoughby Road (Rev A) dated 12 September 2023 • DA9501 - Photomontage - Harris Lane (Rev A) dated 12 September 2023 • DA9600 - Draft Strata Plan (Rev A) dated 12 September 2023 • DA9601 - Draft Strata Plan (Rev A) dated 12 September 2023
14. Owner's consent
15. Stormwater Management Plans prepared by Telford Civil (Rev A) 18 June 2024
16. Swept paths prepared by PDC Consultants 14 June 2024
17. Design Compliance Statement prepared by Mark Shapiro Architects 26 June 2024
18. State Environmental Policy (Housing) 2021 - Verification Statement executed by Registered Architect Mark Shapiro 26 June 2024
19. ADG Checklist prepared by Mark Shapiro Architects Issue D 26 June 2024
20. Operational Waste Management Plan Rev F prepared by Elephants Foot 27 June 2024
21. Construction and Demolition Waste Management Plan Rev B prepared by Elephants Foot 27 June 2024
22. National Construction Code Report prepared by Design Right Consulting 25 June 2024
23. Response to Design Excellence Panel Recommendations prepared by Gyde Consulting 24 June 2024
24. Summary of amalgamation efforts prepared by Gyde Consulting 24 June 2024
25. Addendum Access Letter prepared by Accessible Building Solutions 14 June 2024
26. Assessment of car parking demand and appropriateness 18 June 2024
27. Stormwater response letter prepared by Telford Civil 18 June 2024
28. Letter re suitability of the site prepared by EI Australia 10 July 2024

1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away at the agreed quantum of $3,800 within 28 days of these orders pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application No. DA-2023/263 for demolition of existing structures, slabs and ancillary features on site and construction of a five (5) storey shop top housing development with ground level retail, basement parking, landscaping, strata subdivision and associated works at 539 Willoughby Road, Willoughby is granted consent subject to conditions in Annexure A. 4. The Applicant is to file the plans and documents referred to in paragraph [1] of Annexure A within seven days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2024