Aplus Architecture Pty Ltd trading as Aplus Design Group v Willoughby City Council

[2023] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aplus Architecture Pty Ltd trading as Aplus Design Group v WILLOUGHBY CITY COUNCIL [2023] NSWLEC 1271

Hearing dates:

Conciliation conference on 31 August 2022, 15 September 2022, 30 November 2022

Date of orders:

13 June 2023

Decision date:

13 June 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA2022/2 (as amended) for demolition of the existing building (including the driveway cross over to Victoria Avenue), above ground carparking, the construction of a four-storey retail development and lot consolidation is approved, subject to the conditions of consent at Annexure A.

(3) The Applicant’s amended written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP) prepared by Planning Ingenuity Pty Ltd and dated 23 February 2023, seeking a variation of the development standard for height under clauses 4.3 and 4.3A of the WLEP, is upheld.

Catchwords:

DEVELOPMENT APPEAL – shop top housing development – variation to height of building development standard– conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7, 8.11, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Environmental Planning and Assessment Regulation 2021, s 38, Sch 6, s 3

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings, cll 28, 30

Willloughby Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.4, 4.4B, 4.6, 6.7, Sch 1, Item 31

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Department of Planning, Industry and Environment, Planning Circular PS20-002 (May 2020)

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

NSW Environment Protection Authority, Waste Classification Guidelines (November 2014)

Category:

Principal judgment

Parties:

Aplus Architecture Pty Ltd trading as Aplus Design Group (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
King and Wood Mallesons (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/142105

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA No 2022/95 (the DA) by Willoughby City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA seeks consent for demolition of the existing building (including the driveway cross over to Victoria Avenue), above ground carparking and the construction of a four-storey retail development and lot consolidation at 284 Victoria Avenue, Chatswood, comprising Lot 2 in Deposited Plan 549245 (the Site).

3. The Proposed Development is a commercial development, and the consent authority was the Respondent pursuant to cl 1.6 of the Willoughby Local Environmental Plan 2012 (WLEP).

4. The DA was lodged on 10 January 2022. It was notified in accordance with Council’s notification policy from 27 January 2022 to 17 February 2022. Three public submissions were received.

5. The Applicant lodged an appeal against the deemed refusal of the DA under ss 8.7 and 8.11 of the EPA Act in Class 1 proceedings on 17 May 2022.

6. These proceedings are being heard together with Land and Environment Court proceedings no. 2022/142088 in respect of the adjacent site at 282 Victoria Avenue, Chatswood.

7. On 31 August 2022, the matter was referred to a s34 conference. I was the presiding Commissioner. In response to the matters raised in the Council’s SOFC, as discussed during the s34 conference, the applicant elected to supplement the application with additional documentation and plans (the Amended Development Application). The amended plans and documents were uploaded to the NSW Planning Portal on 18 January 2023, 3 March 2023 and 21 March 2023.

8. The amended DA was notified in accordance with Council’s notification policy from 24 January 2023 to 15 February 2023. No submissions were received.

9. Willoughby City Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) (which continues to have force despite its repeal by reason of s 3(1)(a) to Sch 6 of the Environmental Planning and Assessment Regulation 2021), to the Applicant amending the DA in accordance with the drawings and documents listed at Schedule A.

10. The conciliation conference was reconvened a number of times before a signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 21 March 2023. This decision involved the Court upholding the appeal and granting conditional development consent to the Proposed Development (as amended).

11. I am informed by the parties that the latest amendments resolved the contentions raised in the SOFC and they now invite the Court to exercise the function under s 4.16 of the Environmental Planningand Assessment Act 1979 (EPA Act) to grant consent to the development application subject to conditions as set out in parties’ executed s34 agreement.

12. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions. In this case there are jurisdictional preconditions that must be satisfied before this function can be exercised and the parties have identified these matters in a jurisdictional submission filed with the s34 agreement.

13. Having considered the parties’ joint submissions and the evidence before me, I am satisfied about the following matters:

Satisfaction of jurisdiction

Willoughby Local Environmental Plan 2012

14. The relevant jurisdictional matters in relation to the Willoughby Local Environmental Plan 2012 (WLEP) are:

1. The Site is zoned B3 Commercial Core under the WLEP, in which development for the uses proposed is permitted with consent. The Site is also within Area 5 of the Special Provisions Area Map - sheet SPA_004 within the WLEP.

2. Clause 2.3(2) requires that regard be had to the zone objectives. The parties agree and I am satisfied that the Proposed Development is consistent with the zone objectives which are:

• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To support the role of St Leonards as a specialised centre providing health, research and education facilities.

• To strengthen the role of Chatswood as a major centre for the inner north sub-region and to improve its public domain and pedestrian links.

• To protect and encourage safe and accessible city blocks by providing active land uses on street and pedestrian frontages.

3. Clause 2.7 requires development consent for demolition. The Proposed Development includes demolition.

4. Pursuant to cl 6.7(3) of the WLEP, development consent must not be granted for the erection of a building unless the consent authority is satisfied that the proposal will provide an active street frontage (as defined under cl 6.7(5) of the WLEP). All floor space at Ground Floor Level (but for elements excluded under cl 6.7(4) of the WLEP) is proposed to be used for the purpose of retail premises. The parties agree and I accept that the Proposed Development provides an active street frontage.

5. Clause 4.4 nominates a maximum Floor Space Ratio (FSR) of 2.5:1. The DA provides a FSR of 2.5:1 and is compliant with the maximum FSR.

Exceedance of height control

6. Clause 4.3 nominates a maximum building height of 14m. The Proposed Development has a maximum height of 16.87m. This is a variation of 2.87m or 20.5% to the maximum height standard. The Proposed Development relies upon a request to vary the development standard contained in cl 4.3 of the WLEP pursuant to cl 4.6 of the WLEP (see paragraphs 26-32 in relation to this matter).

7. The objectives of cl 4.3 are:

• to ensure that new development is in harmony with the bulk and scale of

surrounding buildings and the streetscape,

• to minimise the impacts of new development on adjoining or nearby

properties from disruption of views, loss of privacy, overshadowing or visual

intrusion,

• to ensure a high visual quality of the development when viewed from

adjoining properties, the street, waterways, public reserves or foreshores,

• to minimise disruption to existing views or to achieve reasonable view

sharing from adjacent developments or from public open spaces with the

height and bulk of the development,

• to set upper limits for the height of buildings that are consistent with the

redevelopment potential of the relevant land given other development

restrictions, such as floor space and landscaping,

• to use maximum height limits to assist in responding to the current and

desired future character of the locality,

• to reinforce the primary character and land use of the city centre of

Chatswood with the area west of the North Shore Rail Line, being the

commercial office core of Chatswood, and the area east of the North Shore

Rail Line, being the retail shopping core of Chatswood,

• to achieve transitions in building scale from higher intensity business and

retail centres to surrounding residential areas.

8. Clause 4.3A(3) nominates that the height of a building on land in Victoria Avenue, Chatswood that is identified as “Area 3” on the Height of Buildings Map must not exceed, for the 1m of the building back from the road frontage, 7m above ground level (existing) at the centre point of the lot boundary where it adjoins the road frontage.

9. The Proposed Development proposes a maximum height of 10.6m within the 1m setback from Victoria Avenue (Victoria Avenue Frontage Height). The maximum variation is therefore 3.6m. The Proposed Development relies upon the cl 4.6 exceptions to development standards.

10. A Written Request (the Written Request) in accordance with cl 4.6 of the WLEP has been prepared by Planning Ingenuity Pty Ltd and dated 23 February 2023 (listed at Schedule A), seeking a variation of the development standards for height under cll 4.3 and 4.3A of the WLEP.

11. The Written Request says that compliance with cll 4.3 and 4.3A of the WLEP is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standards and Zone B3 are achieved, notwithstanding the noncompliance with the numerical standards for reasons which can be summarised as follows:

1. The scale of the Proposed Development is “in harmony” with the surrounding buildings and streetscape, despite the numerical variation. The Proposed Development does not exceed the existing maximum heights of a number of developments on adjoining sites and results in enhanced built form that will improve the amenity of future occupants and the visual amenity of the streetscape and amenity of adjoining properties. The existing building exceeds the Victoria Avenue Frontage Height at 10.74m, which is greater than the Proposed Development.

2. The Proposed Development replaces the existing three-storey development with a new four-storey commercial building that is also built across the entire footprint of the Site but contains additional setbacks from the front and rear boundaries to reduce the visual impact and impacts on the amenity of adjoining properties. While the Proposed Development increases the maximum height of the development from 10.79m (existing) to 16.87m, it has an increased rear setback for Level 2 and 3 to minimise the impacts on solar access and sense of enclosure. The Proposed Development will reduce wall height at the rear when compared to the existing building. The proposed height variations will not have adverse impacts on private or public views and will not unduly impact the outlook of neighbouring properties. The Proposed Development has been designed to integrate and align with the proposed development at 282 Victoria Avenue. The Proposed Development orientates windows and openings towards Victoria Avenue and away from neighbouring properties and will not unduly impact neighbouring levels of privacy.

3. Due to its dense urban location, the Proposed Development will not be readily visible from any waterways, public reserves or foreshores and will have no visual impact on these areas. The Proposed Development will enhance its visual appearance of the Site by providing a contemporary building with increased articulation and modulation of the Victoria Avenue facade. The deletion of the driveway will enhance the safety and activity on Victoria Avenue.

4. The Proposed Development will not result in any material loss of views or outlook when compared to the existing building on the Site. The Proposed Development is bounded by six and seven storey buildings to the south and east with no significant or important views captured through or above the Site. The Proposed Development does not increase any view impacts on adjacent development or public open spaces even with the height variations.

5. The extent of the height variation can be directly attributed to the requirement to provide protection from flooding and/or alignment with the proposed development at 282 Victoria Avenue. The height variation also enables the redistribution of floor space away from the Victoria Avenue frontage to provide a two-storey street wall that is consistent with the applicable planning controls.

6. The Proposed Development is compatible with the scale and bulk of development on adjoining sites and provides significant enhancement to the aesthetic appearance and safety of the Site.

7. The proposed height variation maximises the quantum of high quality commercial floor space on the Site and will enhance the fine grain commercial character of Victoria Avenue.

8. The immediate context of the Site is one of high density business/retail and mixed use developments. The proposed height of the building is lower than existing buildings on adjoining sites to the east and south and is compatible with existing development within the locality. Due to the large separation distances to residential zones and the presence of high density buildings in the immediate vicinity of the Site, the Proposed Development does not prejudice the transition from higher intensity business and retail centres to surrounding residential areas.

12. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), an Applicant need only establish one way, although if more ways are applicable, an Applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).

13. I am satisfied that the relevant standard is not relevant in the circumstances of this case for the grounds set out in the Written Request.

14. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of cll 4.3 and 4.3A of the WLEP for the reasons contained in the written request, that may be summarised as follows:

1. The Site is flood affected and as outlined in the Flood Report prepared by ACOR Consultants Pty Ltd dated 16 December 2022 (listed at Schedule A), the proposed finished floor level at the northern side of the Proposed Development is required to be at 84.90m Australian Height Datum (AHD), typically more than 1m above street level on Victoria Avenue. These increased levels contribute to the overall Victoria Avenue frontage height variations.

2. The Proposed Development results in a reduction in the Victoria Avenue frontage height when compared to the existing building. While the Victoria Avenue frontage height variation (3.6m) is greater than the extent of flooding and freeboard required (1.3m), the flooding level contributes to the extent of the variation.

3. The variations are considered not to have any material impact as the extent of the height variations creates no unreasonable or unexpected increase in overshadowing impacts to adjoining properties when compared to the existing building envelope, does not result in any adverse additional privacy impacts and will not result in any significant view loss.

4. The Proposed Development complies with the maximum FSR such that the additional height does not equate to any additional density of development on the Site, over and above what is anticipated by the applicable planning controls. The Proposed Development will provide improvements to the bulk and scale of the development with increased setbacks from the front and rear boundaries.

5. The Proposed Development allows floor space to be redistributed to the uppermost level which is setback 6.3m from Victoria Avenue and up to 19.2m from the rear. The Proposed Development will have a two-storey street wall consistent with the intent of the planning controls for the Zone B3 along Victoria Avenue and provide a better response to the fine grain retail character of the street. The Proposed Development provides a building that will enhance the visual quality and amenity of the streetscape by removing a redundant driveway and is consistent with the desired future character of the locality, despite the height non-compliance.

6. The proposed height variation advances the objects in s 1.3 of the EPA Act as it will promote the orderly and economic use and development of land through the replacement of an outdated building with new high quality commercial floor space on all levels with above ground parking at the rear and linked to 282 Victoria Avenue as well as promoting good design and amenity of the built environment through a well-considered design that is responsive to its setting and context.

15. Clause 4.6(4)(a)(ii) requires that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within Zone B3. I am satisfied that the Proposed Development is in the public interest and is consistent with the objectives of the Zone B3 for reasons which can be summarised as follows:

1. The Proposed Development provides a range of commercial tenancies that are consistent with the desire future character of this part of Chatswood CBD.

2. The Proposed Development increases the amount of high quality employment-generating floor space on the Site.

3. The Proposed Development is located 530m from Chatswood Railway and Metro Station, Chatswood Bus Interchange and bus stops on Victoria Avenue adjacent to the Site. The Site has access to high frequency public and active transport modes and also provides a quantum of bicycle and parking spaces.

4. The Proposed Development utilises an outdated existing building to provide for an increase in high quality commercial floor space on the Site, which are encouraged by the applicable planning controls and compatible with surrounding land uses.

5. The Proposed Development maximises the active frontages to Victoria Avenue on all levels of the development to enhance the pedestrian environment adjacent the Site and improves passive surveillance to streets surrounding the Site.

16. For the reasons stated above, I find the Written Request to vary the height standard should be upheld.

17. Clause 4.6(4)(b) of the WLEP also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.

18. In Planning Circular PS20-002 dated 5 May 2020, it was advised that consent authorities can assume the Planning Secretary’s concurrence to vary development standards pursuant to cl 4.6 where a variation does not exceed 10% or relates to a non-numerical standard. The parties accept that concurrence of the Secretary cannot be assumed in these proceedings.

19. Notwithstanding the above, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.

20. I am satisfied that the contravention of the height standard in the Proposed Development (as amended) does not raise any matter of significance for state or regional environmental planning, and there is a public benefit served by upholding the Request for the reasons set out above.

Draft Willoughby Local Environmental Plan

21. The Draft Willoughby Local Environmental Plan (Draft LEP) was publicly exhibited from 5 March 2022 to 7 June 2022.

22. The Draft LEP aims to:

1. Provide substantial increases in heights and floor space ratios in Chatswood to create a vibrant and confident central business district.

2. Consolidate Chatswood’s position as one of Sydney’s top 10 suburban office markets.

3. Ensure that new developments are of excellent design and incorporate green landscaping, with strong overall sustainability credentials.

23. The parties agree and I am satisfied from the evidence that the DA is consistent with the Draft LEP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site, and I am satisfied that the Proposed Development is not inconsistent with the provisions of this Transport and Infrastructure SEPP.

16. The Pacific Highway, Penshurst Street, Willoughby Road and Boundary Road are classified as State Roads and Mowbray Road is classified as a Regional Road. Victoria Avenue and Neridah Street are local, unclassified roads.

17. The above is confirmed in the Traffic and Parking Assessment Report prepared by Varga Traffic Planning dated 3 November 2021 (at Tab 22 of the Class 1 Application filed on 17 May 2022).

18. The Proposed Development does not have a frontage to a classified road. Accordingly, s 2.119 of this SEPP does not apply.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the Site and the Proposed Development.

20. The DA relies upon a Preliminary Site Investigation prepared by Martens dated 15 December 2022 (PSI) (listed at Schedule A) which confirms that the Site is suitable for the Proposed Development and makes recommendations that certain works are completed so that contamination risks remain low and acceptable during, and post construction works.

21. The PSI recommends:

1. Preparation and implementation of a Construction Environmental Management Plan (CEMP) for the construction phase of the project. The CEMP is to include protocols to address any unexpected finds which may be encountered during targeted investigation works for On-site Stormwater Detention (OSD) and lift shaft footing installation.

2. Decommissioning and removal of the above ground diesel tank (and associated infrastructure) to be undertaken by a suitably licenced contractor in accordance with relevant SafeWork NSW and NSW Environment Protection Authority (NSW EPA) guidelines. Following removal, a tank removal validation report to be prepared by a suitably qualified environmental consultant.

3. Undertaking of a formal waste classification assessment to ensure that all spoil generated during excavation work is classified and disposed of in accordance with NSW EPA Waste Classification Guidelines (November 2014).

22. On the basis of the recommendations in the PSI, and appropriate conditions of development consent that have been imposed (being, conditions 1 and 80), I am satisfied that the Site will be suitable for the purpose for which development is proposed to be carried out in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Site.

24. The parties agree that the Proposed Development does not seek consent for the removal of any existing trees or vegetation and I am satisfied it is consistent with the requirements and objectives of this SEPP.

25. Chapter 10 of this SEPP as at 20 November 2022 (prior to its repeal on 21 November 2022) also applies to the land as:

1. the land is within the Sydney Harbour Catchment; and

2. the former provisions continue to apply to an application for development consent lodged, but not finally determined, before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (s 6.65 of the Biodiversity and Conservation SEPP).

26. I am satisfied that the Proposed Development is not inconsistent with the provisions or objectives of Ch 10 of this SEPP.

Conclusion

27. The parties have agreed on conditions of consent which I accept.

28. Having regard to all of the 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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

29. The Court notes that:

1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. The Respondent has approved the Applicant amending the development application under clause 55 of the Environmental Planning and Assessment Regulation 2000.

3. The Applicant agrees to pay the Respondent’s costs in the agreed sum of $30,000 in full and final settlement of costs in the proceedings.

4. The parties confirm that the amended development application has been uploaded to the NSW Planning Portal on 18 January 2023, 3 March 2023 and 21 March 2023.

Orders

30. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2022/2 (as amended) for demolition of the existing building (including the driveway cross over to Victoria Avenue), above ground carparking, the construction of a four-storey retail development and lot consolidation is approved, subject to the conditions of consent at Annexure A.

3. The Applicant’s amended written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP) prepared by Planning Ingenuity Pty Ltd and dated 23 February 2023, seeking a variation of the development standards for height under clauses 4.3 and 4.3A of the WLEP, is upheld.

L Sheridan

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 13 June 2023