BM Chatswood Pty Ltd v Willoughby City Council

[2024] NSWLEC 1107

Land and Environment Court

New South Wales

Medium Neutral Citation:

BM Chatswood Pty Ltd v Willoughby City Council [2024] NSWLEC 1107

Hearing dates:

22-27 February 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Court exercising the function of the consent authority, Willoughby City Council, pursuant to s 39(2) of the Land and Environment Court Act 1979, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the development application DA 2022/308 by Notice of Motion and Exhibit MS-1.

(2) The appeal is upheld.

(3) Development Application No DA 2022/308 for the demolition of existing structures and the construction of two residential flat buildings, at 1A-29 Bowden Street and 12-18 Moriarty Road, Chatswood, is approved, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than Exhibits 1, A, B, C, D, E, F and K, are returned.

Catchwords:

DEVELOPMENT APPLICATION – two residential flat buildings and associated site works – development capable of being delivered in two stages – site is to be amalgamated prior to issue of occupation certificate for the first stage

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.22, 6.9, 8.7, 9.34

Land and Environment Court Act 1979 ss 34, 39

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 s 53

Environmental Planning and Assessment Regulation 2021 cl 38

Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, Pt 4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 6.1

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 7A cl 8

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

State Environmental Planning Policy (Transport and Infrastructure) s 2.122

Willoughby Local Environmental Plan 2012, cll, 4.3, 4.4, 6.2, 6.8, 6.10, 6.23

Cases Cited:

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Texts Cited:

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

BM Chatswood Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2022/370718

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA 2022/308 for the demolition of existing structures and the construction of two residential flat buildings over basement parking and associated site works including landscaping (the proposal), at 1A-29 Bowden Street and 12-18 Moriarty Road, Chatswood (the site), by Willoughby City Council (the Council).

2. The appeal was subject to conciliation on 15 June 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 28 July 2023, pursuant to s 34(4) of the LEC Act.

3. At the commencement of the hearing, the Council advised the Court that all the contentions raised in the Amended Statement of Facts and Conditions (Exh 1) had been satisfactorily addressed by amendments made to the proposal.

4. The parties were unable to reach agreement on the conditions of consent because, according to the applicant, once the Council’s version of conditions was received on 21 February 2024, the applicant became aware that certain conditions frustrated the ability of the consent holder to construct the residential flat buildings in two stages.

The application is amended

5. The applicant’s Notice of Motion supported by the affidavit of Matt Sonter affirmed 23 February 2024 was heard on the third day of the hearing, 26 February 2024. The Council opposed the granting of the motion.

6. The applicant wishes to construct Building B prior to the construction of Building A. The motion sought the amendment of the layout of the proposal to allow the basement and ground floor of the proposal to be constructed in two stages, including the landscaping. Building B over basement car parking is to be constructed during the first stage and Building A over basement car parking to be joined to the Building B basement, is to be constructed during the second stage of works.

7. The applicant submitted that an Occupation Certificate (OC) can be issued in stages, pursuant to s 6.9(1)(a) of the EPA Act. The Council’s version of the conditions, however, included conditions which, as drafted in Exh L, would frustrate the ability of the consent holder to construct the two buildings across two stages.

8. The Council submitted that the application is for a single integrated development and had the applicant wanted to stage the development, the onus was on the applicant to lodge the application as a concept development pursuant to Div 4.4 of the EPA Act, which provides for development to be staged (s 4.22(2) of the EPA Act) and for the likely impacts of a discrete stage of the development to be assessed once the application for that stage is lodged (s 4.22(5) of the EPA Act). The Council is concerned that certain aspects of the development may not work on a staged basis (such as the stormwater, which may affect the onsite detention, the quantity of deep soil and so on) and that there was insufficient time during the hearing to assess those aspects of the development across two stages.

9. The Council submitted that the application has been assessed as a single integrated development, for example, the gross floor area (GFA) permitted under the floor space ratio (FSR) development standard for the whole site is concentrated in Building B and is not distributed equally across the two stages. By allowing the proposal to be constructed in two stages, the applicant may choose to construct Building B and not construct Building A. A future owner of the Building A site would not accept that the site is burdened by the greater proportion of the permissible density for the whole site being located on the stage 1 site.

10. The applicant submitted that the “orders power” of Council is not available if the application were for a concept development, whereas the Council has the power under s 9.34 and cl 13 of Sch 5 to the EPA Act to issue a Complete Works Order to the consent holder to complete the authorised works under the consent within a specified time (referred to by the applicant as the “orders power”). Furthermore, it is a condition of an OC for the first completed stage of a partially completed building that an OC must be obtained for the whole building within 5 years after the partial OC is issued, pursuant to s 53 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

11. The applicant submitted that the Council’s opposition to the construction of the development in two stages is a fear that Building A will never be built, and if that is the purpose of those conditions that frustrate the ability of the consent holder to construct the development in two stages, those conditions do not have a legitimate planning purpose (Newbury District Council v Secretary of State for the Environment (UK) [1981] AC 578 at 607). The applicant submitted that the “orders power” provisions under the planning scheme should give the Council comfort that the Council can order the consent holder to complete the second stage of the development once the first stage has been constructed.

12. The Council submitted that there is no community benefit to staging the development, the only benefit is to the applicant. The applicant submitted that it is irrelevant that the staging of the development has no community benefit.

13. The motion was granted on the basis of the applicant’s submissions. The stormwater and traffic experts were directed to confer and produce a short addendum joint report regarding the amended application and those joint reports were admitted into evidence the following day (Exhs 6 and 7). The experts agreed that the amended proposal for the development to be constructed in two stages was feasible in terms of the stormwater design and basement parking layout and agreed on conditions that have been incorporated into the conditions of consent at Annexure A.

Issues

14. Following the grating of leave to the applicant to amend the application, the parties only disagreement was the terms of condition 95, “Registration of Plan of Consolidation”. The applicant’s disputed conditions in the conditions of consent admitted as Exhibit L were resolved by agreement and admitted as Exhibit M, but for condition 95.

The site

15. The site is on the eastern side of Bowen Street, between Moriarty Road to the north and Mowbray Road to the south. The site is in the vicinity of the Great Northern Hotel on the north-western corner of Mowbray Road and Pacific Highway. The site is located 73m west of the Pacific Highway and is located within 800 metres of both Chatswood Interchange and Artarmon train station.

16. The site consists of the following allotments, being 1A to 29 Bowen Street and 12 to 18 Moriarty Road, Chatswood NSW 2060:

(a)   Lots 1 and 2 in Deposited Plan 844161;

(b)   Lots 1 and 2 in Deposited Plan 580741;

(c)   Lots B1 and B2 in Deposited Plan 444998;

(d)   Lots 1 and 2 in Deposited Plan 1154938

(e)   Lots 1 and 2 in Deposited Plan 597787;

(f)   Lots 1 and 2 in Deposited Plan 733443;

(g)   Lot 100 in Deposited Plan 1247114;

(h)   Lots 101 and 102 in Deposited Plan 1169675;

(i)   Lot 1 in Deposited Plan 915744;

(j)   Lot 1 in Deposited Plan 363053; and

(k)   Lots A and B in Deposited Plan 439872.

17. The site is irregular in shape and has a total site area of 6,188m².

18. The site has a primary street frontage to Bowen Street of approximately 153.38m, and a secondary street frontage to Moriarty Road of approximately 35.47m.

19. The site is relatively level and has a fall is a maximum of approximately 11.7 metres on the northern boundary and 12.7 metres on the southern boundary.

20. Currently erected on the site are 10 buildings (excluding outbuildings) which include semi-detached dwellings fronting Bowen Street and Moriarty Road with some outbuildings, all of which are proposed to be demolished.

21. The applicant has obtained owners consent from the registered proprietors of the site.

The proposal

22. The proposal includes 2 x five storey residential flat buildings (Buildings A and B), containing a total of 90 units (1 studio, 18 x one bed, 21 x two bed, 50 x three bed units); two storey basement car park comprising 119 car parking spaces and 5 motorcycle parking spaces 9 bicycle lockers and 8 spaces for bicycle rails; vehicular access from Bowen Street and removal of 43 trees and associated tree replacement and landscaping works.

Expert evidence

23. The applicant relied on the expert evidence of Peter Smith (urban design), Cameron Gray (town planning), Nick Metcalf (landscape), Robert Varga (traffic) and Ian Warren (stormwater).

24. The Council relied on the expert evidence of Wil Robertson (urban design), Peter Wells (town planning), Anthony Powe (landscape) and Clare Woods (traffic and stormwater).

25. The experts prepared joint reports that were admitted into evidence. The experts were not required for oral evidence.

Jurisdictional pre-requisites to the grant of consent

26. The site is zoned R4 High Density Residential pursuant to the Willoughby Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R4 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network.

• To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.

27. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site at s 2.3(1). I accept the Council’s submission in the Jurisdictional Statement filed with the Court on 26 February 2024 that the proposal is consistent with the requirements of Ch 2 of the Biodiversity SEPP because the trees on the site to be removed do not comprise Koala Habitat Vegetation and their removal will not trigger the Biodiversity offset scheme. Accordingly, the removal of the trees is consistent with the Biodiversity SEPP having regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscape plans.

28. The site is located within the Sydney Harbour Catchment and therefore Chapter 6 of the Biodiversity SEPP applies to the proposal at s 6.1. I accept the Council’s submission that the proposal is consistent with the requirements of Ch 6.

29. I accept the Council’s submission that the site has historically been used for a residential purpose and is appropriate for the development, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

30. I accept the Council’s submission that the proposal, as a traffic generating development, has been referred to NSW Transport, pursuant to s 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) and that on the basis of expert reports and the response of NSW Transport, the proposal adequately responds to the requirements of the Transport SEPP.

31. The Council submits that the proposal is consistent with the design principles under Pt 4 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). SEPP 65 was repealed on 14 December 2023 without savings and transitional provisions. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) does not apply to the proposal as the application was lodged on 27 September 2022 prior to the commencement of Ch 4 (cl 8(1) of Sch 7A to the Housing SEPP).

32. I accept the Council’s submission that the proposal complies with the height of buildings development standard of 18m (with a maximum height of approximately 17m) pursuant to cl 4.3 of LEP 2012, and the FSR development standard of 2:1 (with a FSR of 1.75:1) pursuant to cl 4.4 of LEP 2012.

33. I accept the Council’s submission that the matters for consideration regarding earthworks, at cl 6.2 of LEP 2012, are satisfied.

34. I accept the Council’s submission that the proposal provides the required 4% of dedicated affordable housing units and complies with the Willoughby Affordable Housing Principles, pursuant to cl 6.8 of LEP 2012.

35. I accept the Council’s submission that the proposal complies with the minimum lot size in the R4 zone, pursuant to cl 6.10 of LEP 2012.

36. I have had regard to how the proposal addresses each of the design excellence provisions under cl 6.23(5) of LEP 2012 and I am satisfied, supported by the Council’s submission, that the proposal exhibits a high standard of architectural, urban and landscape design appropriate to the building type and location.

The terms of condition 95 Registration of Plan of Consolidation

37. The parties disagreed on the terms of condition 95.

38. The Council’s version of condition 95 is as follows:

Prior to the issue of any Occupation Certificate, all individual allotments involved in the development site shall be consolidated into a single allotment and evidence of the registration of the plan of consolidation to be submitted to Council.

39. The applicant’s version of condition 95 is as follows:

Prior to the issue of an Occupation Certificate for Stage 2, all individual allotments involved in the development for Stage 2 shall be consolidated into a single allotment and evidence of the registration of the plan of consolidation to be submitted to Council.

40. Willoughby Development Control Plan 2023 (DCP 2023) includes specific provisions for the site, at Part B, Section 7.7. Those provisions include an objective to ensure that the site is amalgamated to enable the substantial redevelopment of the site for medium to high density residential development, at Section 7.7.1. Regarding allotment size and consolidation, the site specific provisions, at Section 7.7.2(g), include an objective that allotments should be amalgamated to ensure that sufficient site area is available to achieve the stated development potential, and a control that new development on the site will be required to consolidate all affected allotments.

41. The Council submitted that the proposal has been assessed holistically, and one implication of this assessment is that a greater proportion of the GFA permitted under the FSR development standard for the site is located on the portion of the site now identified as Building B. The FSR for the whole development complies with the development standard. Other numerical controls that apply and features of the proposal that have been assessed on the basis of the whole of the proposal include private open space, the public domain works, and the turning circle.

42. The Council submitted that without lot consolidation for the whole site prior to the issue of the OC for the proposed first stage of the development, the second stage of development may never occur. The Council cannot necessarily rely on the “orders power”, because the Building A site may be owned by a different owner/s.

43. The Council submitted that the Council’s version of condition 95 requires the consent holder to be prudent and obtain options for the whole of the site before starting construction of stage 1.

44. The applicant submitted that consolidation of the site does not change the ownership, it merely creates one lot with various owners. There may still be owners who do not wish to proceed with stage 2 of the development. The DCP 2023 intent would be served by the applicant’s version of condition 95.

45. The applicant submitted that a possible consequence of the Council’s version of condition 95 is that Building B, once constructed, would be sterilised if the consent holder is unable to consolidate the stage 2 site and therefore obtain an OC for Building B.

46. I accept and agree with the Council’s submissions for the following reasons and condition 95 in Annexure A is in the terms sought by the Council:

• The Complete Works Order requires the order to be issued before the approval would have lapsed (but for the commencement of the works). The Council would not be able to issue the order if the consent holder’s intention not to construct stage 2 of the approved development only becomes apparent after the date on which the consent would have otherwise lapsed. The “orders power” may not therefore be available to the Council at the appropriate time.

• The development has been assessed as a whole and the GFA is disproportionately spread across the two stages, with a greater proportion of the density located on the stage 1 site. I accept the Council’s submission that there would be a reasonable expectation that the stage 2 site, if alienated from the stage 1 site, be developed to its maximum development potential. The requirement for the site to be consolidated prior to the occupation of Building B effectively requires the consent holder to be certain of being able to consolidate the site prior to commencing construction of the stage 1 works.

• The terms of the Council’s condition 95 permit the consent holder to stage the development.

• It is unlikely the various current owners of the allotments that make up the stage 2 site would agree to consolidation of those allotments without the certainty of selling their property to the developer. For this reason, I do not accept the applicant’s submission “consolidation does not affect ownership, but merely creates one lot with various owners” is a likely outcome when those owners are not the developer.

• The Council’s version of condition 95, requiring the consent holder to be certain of being able to consolidate the site prior to commencing stage 1 works, is consistent with the objectives of the site specific provisions for this site under DCP 2023.

Orders

47. The orders of the Court are:

1. The Court exercising the function of the consent authority, Willoughby City Council, pursuant to s 39(2) of the Land and Environment Court Act 1979, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the development application DA 2022/308 by Notice of Motion and Exhibit MS-1.

2. The appeal is upheld.

3. Development Application No DA 2022/308 for the demolition of existing structures and the construction of two residential flat buildings, at 1A-29 Bowden Street and 12-18 Moriarty Road, Chatswood, is approved, subject to the conditions of consent at Annexure A.

4. The exhibits, other than exhibits 1, A, B, C, D, E, F and K, are returned.

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 13 March 2024