Architecture Urbaneia Pty Limited v Willoughby City Council

[2021] NSWLEC 1358

Land and Environment Court

New South Wales

Medium Neutral Citation:

Architecture Urbaneia Pty Limited v Willoughby City Council [2021] NSWLEC 1358

Hearing dates:

Conciliation conference on 26 April 2021

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Class 1

Before:

Shiels AC

Decision:

The Court orders:

(1) The Applicant is granted leave to amend the development application to rely upon the amended architectural plans, landscape plans and reports referred to in condition 1 of Annexure A and a revised clause 4.6 objection dated 12 May 2021.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away, as agreed or assessed as a result of the amendment of the application.

(3) The applicant's written request under clause 4.6 of the Willoughby Local Environmental Plan 2013 seeking a variation of the development standard for floor space ratio under clauses 4.4 of the Willoughby Local Environmental Plan 2013 is upheld.

(4) The Appeal is upheld.

(5) Development Application No. DA 2020/113 for the demolition of existing dwellings and structures, consolidation of Lot 1 DP 101483 and Lot 2 DP 101483 into a single lot and construction of multi dwelling housing comprising eight townhouses with basement parking for thirteen vehicles and rooftop terraces for five townhouses is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – residential flat building – breach of FSR development standard conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 - Remediation of Land

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

State Environmental Planning Policy (Infrastructure) 2007

State Regional Environmental Planning Policy (Sydney Harbour Catchment) 2005

Willoughby Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Architecture Urbaneia Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/19527

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are from an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondents refusal of development application number DA2020/113 for the demolition of two single storey 3 bedroom residential dwellings and the erection of eight townhouses containing 3 levels plus rooftop areas and a single level of basement car parking containing 13 spaces at 14 and 16 Penshurst St Willoughby. The development application was refused by Willoughby Local Environmental Panel on 8 December 2020.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 26 April 2020. I presided over the conciliation conference.

3. After the conciliation conference, on 13 May 2021 the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision, acceptable to the court, involved upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 its function under s 4.16 of the EPA Act, such as to grant consent to the development application.

5. 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 to have satisfied EPA Act and to vary a development standard pursuant to cl 4.6 of Willoughby Local Environmental Plan 2012.

6. As the presiding Acting 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The site is zoned R3 Medium Density Residential pursuant to the Willoughby Local Environmental Plan 2012 (WLEP 2012), in which residential flat buildings are permissible with consent.

2. Clause 2.3 of WLEP 2012 requires consideration of the R3 zone objectives. The statement of environmental effects addresses the zoning objectives and council's assessment report deals with the zoning objectives. I am satisfied that the proposal is consistent with the relevant objectives.

3. I am satisfied that consent should be granted notwithstanding the contravention of the FSR development standard. Clause 4.4 prescribes a maximum FSR for the land of 0.9: 1. There is a minor exceedance of the FSR (0.93:1) and the applicant has lodged a clause 4.6 objection to the development standard.

4. The written request lodged pursuant to cl 4.6 of the WLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach of the development standard.

5. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given the proposal is consistent with the objectives of the standard, notwithstanding the noncompliance as there is no impact caused by the breach of the standard. Based on the contents of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

7. The site is located on Class 5 land on Council’s Acid Sulphate Soils Map. Pursuant to cl 6.1 the WLEP 2012, the DA does not propose works within 500m of the adjacent Class 1, 2, 3 and 4 land.

8. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the land. Clause 7 is relevant and cl 7(1)(a) states that consent authority must not grant consent to the carrying out of development on land unless it has considered whether the land is contaminated. Given the history of the residential use of both lots that comprise the development site, the site is not considered to be the subject of contamination and further investigation is not required at this stage.

9. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the land, however, the land is not located within the foreshore and waterways area. The relevant matters relating to biodiversity, ecology and environmental protection have been considered and conditions have been imposed. The development will not have any unacceptable impacts on views to and from the harbour and the scale, form, design and siting of the development will not impact upon the scenic quality of the foreshore or the harbour.

10. The proposal has been assessed against the relevant provisions of State Environmental Planning Policy (Infrastructure) 2007. As the development involves only eight dwellings and will not have a direct frontage to a classified road, further consideration under the SEPP is not required.

11. Assessment of the development under State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development is not necessary.

12. Accordingly, I am satisfied with the joint statement of jurisdictional requirements submitted by the parties to the Court.

13. 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.

14. 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.

15. The Court orders:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans, landscape plans and reports referred to in condition 1 of Annexure A and a revised clause 4.6 objection dated 12 May 2021.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away, as agreed or assessed as a result of the amendment of the application.

3. The applicant's written request under clause 4.6 of the Willoughby Local Environmental Plan 2013 seeking a variation of the development standard for floor space ratio under clauses 4.4 of the Willoughby Local Environmental Plan 2013 is upheld.

4. The Appeal is upheld.

5. Development Application No. DA 2020/113 for the demolition of existing dwellings and structures, consolidation of Lot 1 DP 101483 and Lot 2 DP 101483 into a single lot and construction of multi dwelling housing comprising eight townhouses with basement parking for thirteen vehicles and rooftop terraces for five townhouses is approved subject to the conditions in Annexure A

.……………………….

Gary A Shiels

Acting Commissioner of the Court

Annexure A (289510, pdf)

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Decision last updated: 18 June 2021