APlus Architecture Pty Ltd v Willoughby City Council

[2024] NSWLEC 1514

Land and Environment Court

New South Wales

Medium Neutral Citation:

APlus Architecture Pty Ltd v Willoughby City Council [2024] NSWLEC 1514

Hearing dates:

Conciliation conference on 19 February and 13 August 2024

Date of orders:

23 August 2024

Decision date:

23 August 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   Leave is granted to the Applicant to amend Modification Application DA-2022/2 and rely upon the amended plans and documents referred to at Condition 2 of Annexure A.

(2)   Development Consent DA-2022/2 is modified in the terms set out at Annexure A.

(3)   Development Consent DA-2022/2 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – retail development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 98, 100, 113

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

State Environmental Planning Policy (Transport and Infrastructure) 2021

Willoughby Local Environmental Plan 2012, cl 5.21

Cases Cited:

APlus Architecture Pty Ltd trading as APlus Design Group v Willoughby City Council [2023] NSWLEC 1271

Texts Cited:

Willoughby Community Participation Plan 2021

Category:

Principal judgment

Parties:

APlus Architecture Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
P Shumack (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/219724

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application (the MA) made directly to the Court by APlus Architecture Pty Ltd (the Applicant).

2. The MA seeks to modify Development Consent DA-2022/2 (the parent DA) which comprises the demolition of existing structures, construction of a four-storey retail development and lot consolidation at 284 Victoria Avenue, Chatswood (the site).

3. Consent for the parent DA was granted by the Court on 13 June 2023 in APlus Architecture Pty Ltd trading as APlus Design Group v Willoughby City Council [2023] NSWLEC 1271 (APlus v Willoughby).

4. The MA was lodged with the Court on 10 July 2023.

5. At the date of its lodgement, the MA sought approval for a range of modifications, which include:

1. Changes to the facade of the building, including alterations to the finished floor levels of Levels 1, 2 and 3 to achieve alignment with the finished floor levels of the neighbouring building at 282 Victoria Avenue.

2. Amendments to the layout of the building core to accommodate a new atrium, with an internal staircase connecting to retail tenancies across all floors and a new skylight to the roof.

3. Various changes to the facade, including the introduction of additional windows and associated glazing on the southern and western elevations of the building at Level 2 and Level 3.

4. Lowering the finished floor level of the Ground Floor by 1.28m to create level access from Victoria Avenue to the Ground Floor retail tenancy and as a result, implementation of ground level flood protection including a flood roller door and flood-proof glass.

5. Changes to the layout and circulation of servicing areas behind the retail tenancy, including the removal of general and bike storage areas, changes to the waste holding room and moving the location of the lift.

6. Various changes to the internal planning, including introducing additional internal partition walls to create an additional retail tenancy, and a number of changes to the layout of the floor to accommodate the relocation of the building lift and core.

6. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 February and 13 August 2024. I presided over the conciliation conference.

7. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting consent to an amended MA, subject to conditions.

8. 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 s 4.55(8) of the EPA Act to modify the parent DA.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. In that regard and pursuant to ss 98(1) and 100(1)(i) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

11. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, no change to the number of levels, no change to the approved building height, and the general appearance of the building continues to present as a retail development.

12. The parties agree, and I am satisfied, that the MA was publicly notified between 13 October and 3 November 2023 in accordance with the Respondent’s Community Participation Plan and no submissions were received. I am satisfied that the MA has been appropriately notified as required by s 4.55(2)(c) of the EPA Act.

13. Agreed amendments to the MA include design changes to:

1. Alter some finished floor levels and internal spaces in order to achieve better internal access with the adjacent site at 282 Victoria Avenue.

2. Alter the facade to achieve better ground floor activation and a more consistent street facade with the adjacent site.

3. Internally reconfigure retail spaces.

4. Lower the retail ground floor level to provide better street activation and at the same time introduce flood mitigation measures to protect part of the ground floor retail tenancies which would otherwise be below the flood planning level.

14. The parties agree, and I am satisfied, that pursuant to s 4.55(3) of the EPA Act the Court - as consent authority - must take into consideration such matters referred to in s 4.15(1) of the EPA Act as are relevant to the amended MA. The Court must also take into consideration the reasons given for the grant of the consent that is sought to be modified.

15. The parties agree, and I am satisfied, that the reasons for the grant of consent for the parent DA (as set out in APlus v Willoughby) have been appropriately considered in the assessment of the MA.

16. The parties agree, and I am satisfied, that the Willoughby Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned E2 Commercial Centre and the approved development - characterised as retail premises - is permissible with consent and the amended MA maintains the objectives of the E2 zone.

17. The parties agree, and I am satisfied, that pursuant to cl 5.21 - Flood planning - of the WLEP, the amended MA includes a design for the ground floor retail tenancies that minimises potential for property damage by the introduction of flood mitigation measures including flood gates and by configuring the majority of the retail space on an internal mezzanine level raised above the relevant flood planning level. As such, I am satisfied that the amended MA remains consistent with the objectives of cl 5.21 of the WLEP, and that appropriate consideration has been given to the reasons for imposing Condition of Consent 10 of the parent DA.

18. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure). I am satisfied that the amended MA remains consistent with the provisions of SEPP Infrastructure. The amended MA is supported by a traffic and parking report prepared by Varga Traffic Planning, which, it is agreed, confirms suitable parking arrangements are provided.

19. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience). A Preliminary Site Investigation (PSI), prepared by Martens, accompanied the parent DA and confirmed that the site was suitable for development subject to various recommendations.

20. Consent was granted by the Court to the parent DA noting that, on the basis of this PSI and imposed Conditions of Consent 1 and 80, the Court was satisfied that s 4.6 of SEPP Resilience was appropriately addressed.

21. Accordingly, the parties now agree, and I am satisfied, that the amended MA remains consistent with the provisions of SEPP Resilience.

22. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

23. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the Modification Application with the approval of the Respondent.

2. The Applicant has agreed to pay the Respondent's costs thrown away, in the agreed sum of $18,000, within 28 days of the date of these orders.

3. The Applicant has lodged the amended Modification Application with the Court on 7 August 2024.

Orders

24. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application DA-2022/2 and rely upon the amended plans and documents referred to at Condition 2 of Annexure A.

2. Development Consent DA-2022/2 is modified in the terms set out at Annexure A.

3. Development Consent DA-2022/2 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court 

Annexure A

Annexure B

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Decision last updated: 23 August 2024