Camuglia v Willoughby City Council

[2023] NSWLEC 1311

Land and Environment Court

New South Wales

Medium Neutral Citation:

Camuglia v Willoughby City Council [2023] NSWLEC 1311

Hearing dates:

Conciliation conference on 16 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

(2) The applicant’s written request prepared by Minto Planning Services dated 19 April 2023, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 (“WLEP”), to vary the height of buildings development standard in clause 4.3 of the WLEP is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to development application no. DA-2022/367, for alterations and additions to the existing heritage building, the change of use to a single dwelling house and the construction of a new tennis court, swimming pool and associated works at 97 Ashley Street, Roseville (Lot 300 in Deposited Plan 1029909), subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to existing heritage building, change of use to a single dwelling house and construction of a new tennis court, swimming pool and associated works – conciliation conference – agreement between the parties – orders

Legislation Cited:

Draft Willoughby Local Environmental Plan 2022

Environmental Planning and Assessment Act 1979, ss 1.3, 4.16

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 Pt 6.2 Div 2 ss 6.6-6.10; Pts 6.3-6.5

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

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

Willoughby Local Environmental Plan 2012, cll 1.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, Sch 5 Pts 1, 2

Texts Cited:

Willoughby Community Participation Plan

Category:

Principal judgment

Parties:

Mark Camuglia (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/42161

Publication restriction:

Nil

Judgment

1. These proceedings arise following the Council’s deemed refusal of the applicant’s development application (DA-2022/367) (DA) for alterations to the heritage building at 97 Ashley Street, Roseville (Lot 300 in Deposited Plan 1029909) (site) to allow its use as a single dwelling with a new tennis court and swimming pool.

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 was held on 16 June 2023. I presided over the conciliation conference. During the conference the parties reached agreement, as to the terms of a decision in the proceedings that would be acceptable to them.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the 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 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the amended DA subject to conditions.

4. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties’ joint jurisdictional submission accompanying the s34 agreement. In that regard, I am satisfied about the following matters.

Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

Owner’s consent

5. The applicant is the registered proprietor of the site, for the purposes of s 23(1) of the EPA Regulation.

State Environmental Planning Policies

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

6. Section 4.6(1) of Resilience and Hazards SEPP, provides that the consent authority must not grant consent to development unless it has considered whether the site is contaminated and, subject to its status of contamination, is or will be made to be suitable for the development.

7. The Heritage Impact Statement (HIS) accompanying the DA states that the site has been used for residential purposes since at least the early 20^th century and the application is for a residential use. Accepting that:

• the site is not within an investigation area;

• the previous use of the site was not a “Table 1” use under the contaminated land planning guidelines (as defined in the Resilience and Hazards SEPP); and

• no “Table 1” use has ever been carried out on the site.

I am satisfied that there is no need for preliminary site investigation before the grant development consent and that the site is suitable for the development.

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

8. The provisions of the BASIX SEPP have been considered and, in my assessment, satisfactorily addressed by the amended BASIX Certificate.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

9. The site is within the Sydney Harbour Catchment and, accordingly, Ch 6 of the Biodiversity and Conservation SEPP applies to the site.

10. Based on the amended DA, the stormwater drawings and the Geotechnical Investigation that accompanied the application, subject to the agreed conditions of consent, I am satisfied that all matters under Div 2 of Pt 6.2 (ss 6.6-6.10) of the Biodiversity and Conservation SEPP have been duly considered. In that regard I note that:

• The site is not within the Foreshores and Waterways Area under the Biodiversity and Conservation SEPP. Accordingly, Pt 6.3 does not apply to the amended DA.

• The site is not shown on the Heritage Map under the Biodiversity and Conservation SEPP for the purposes of identifying a heritage item or an Aboriginal place of heritage significance. Accordingly, Pt 6.4 does not apply to the amended DA.

• The site is not within the Sydney Drinking Water Catchment under the Biodiversity and Conservation SEPP. Accordingly, Pt 6.5 does not apply to the amended DA.

Willoughby Local Environmental Plan 2012 (WLEP)

Building height

11. The amended DA is permissible with development consent in the R2 Low Density Residential Zone of the WLEP.

12. The Council is satisfied, and I accept on the evidence before me that the amended DA is consistent with the aims of the WLEP contained in cl 1.2 and with the zone objectives pursuant to cl 2.3.

13. Under cl 2.7 of the WLEP, I note that demolition of a building or work may be carried out only with development consent.

14. The Height of Buildings Map referred to in cl 4.3(2) of the WLEP shows that the maximum permissible height of buildings on the site is 8m. The works proposed under the amended DA have a maximum height of 11.659m (with the existing building erected on the site currently having a height of 13.43m) therefore, a variation to the development standard is sought.

15. The applicant relies on the written request under cl 4.6 of the WLEP prepared by Minto Planning Services dated 19 April 2023 for a relaxation of the height development standard.

16. After review I am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(4)(a)(i) of the WLEP and find:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of the WLEP); and

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of the WLEP (cl 4.6(3)(b) of the WLEP); and

17. For the reasons set out at pp 3-5 of the written request, the Council is satisfied, and I accept that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development nonetheless achieves the objectives (a)-(f) of the standard. In particular I note that:

1. while alterations and additions to the existing building on the site are proposed with a maximum height of those works being 11.659m, which is higher than the applicable height of buildings development standard, the existing building on the site has a height of 13.43m;

2. the existing building on the site currently has a height of 13.43m (existing tower), which will remain and exceeds the height of the development standard and the proposed development;

3. the proposed alterations and additions have been designed so as to have a height lower than the existing ridge (RL 12.37). The area of non-compliance does not extend above the height of the main ridge height of the existing building; and

4. the non-compliance with the height of buildings development standard will not result in any additional negative impacts on the privacy or amenity of the adjoining properties to the east and west.

18. For the reasons set out at p 6 of the written request, the Council submits, and I accept that the written request demonstrates that there are sufficient environmental planning grounds to support the variation.

19. It is to be noted as the request explains the existing building is a local heritage item which comprises varied roof shapes including hipped and gabled roof forms. A three-storey tower dominates the south-western corner and its pitched roof extends above the principal roof form. The proposed additions have been designed to retain the original roof form and its chimneys and provide for a hipped roof extension on the eastern side of the principal building. The pitch extends from the existing eastern roof plane (sitting well below the existing ridge) and comprises a roof form, pitch and tiles to match the characteristics of the principal roof form. The hipped roof form of the proposed eastern wing addition will match the style and profile of the principal roof form and will incorporate fenestration to match the principal dwelling in style and proportion and will be visually complementary yet subservient to the principal dwelling. This element would only be marginally visible in views from Ashley Street to the front elevation of the dwelling.

20. Furthermore, as the request identifies the parties agree that a development which complies with the height of building development standard would result in an unsympathetic roof form that would detract from the significance of the heritage item.

21. Ultimately, the request claims that the above environmental planning grounds support the following objects under s 1.3 of the EPA Act namely:

• Object (c), to promote the orderly and economic use and development of land;

• Object (f), to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage); and

• Object (g), to promote good design and amenity of the built environment.

22. For the reasons set out at pp 7-8 of the written request the Council submits that it is satisfied that the amended DA is consistent with the objectives of the R2 Low Density Residential zone under the WLEP and the objectives of the development standard breached, and as such, the development is in the public interest.

23. For the purposes of cll 4.6(4)(b) and 4.6(5) of the WLEP, the Secretary of the Department of Planning and Environment’s concurrence to the variation is assumed and I accept that the matters raised in cl 4.6(5) of the WLEP have been considered (p 8 of the written request).

Floor space ratio (FSR)

24. Under cl 4.4 of the WLEP, a maximum FSR of 0.4:1 is permitted on the site and the development is complaint with a maximum gross floor area of 663.18m² and a FSR of 0.26:1.

Heritage

25. The former dwelling house on the site is listed as a local heritage item (I60) under Pt 1 of Sch 5 of the WLEP (Heritage Item) and the site is located within the North Chatswood Heritage Conservation Area (C10) under Pt 2 of Sch 5 of the WLEP (HCA).

26. Accordingly, cl 5.10 of the WLEP applies to the amended DA. In accordance with cl 5.10(5) of the WLEP, the application includes HIS and a Fabric Survey.

27. The parties submit, having regard to the amended DA, the HIS, the Fabric Survey and the agreed conditions of consent, that the proposed development will not have an adverse impact on the heritage significance of the Heritage Item or on the HCA.

Acid sulfate soils

28. Clause 6.1 of the WLEP requires development consent to be obtained for the carrying out of works described in the table to cl 6.1(2) of the WLEP on land shown on the Acid Sulfate Soils Map under the WLEP as being of the class specified for those works. While the site is identified as Class 5 on the Acid Sulfate Soils Map, there are no works proposed such as to engage cl 6.1 of the WLEP.

Stormwater

29. The parties agree and I accept, having regard to the amended DA, the stormwater drawings and the Geotechnical Investigations, and subject to the imposition of the agreed conditions of consent that the matters listed in cl 6.2(3) of the WLEP have been considered and addressed.

Draft Willoughby Local Environmental Plan 2022 (Draft WLEP)

30. Between 5 March and 7 June 2022, the Council exhibited proposed changes to the WLEP (Draft WLEP). On 12 December 2022, the Council resolved to submit the Draft WLEP, and on 23 February 2023 the Draft WLEP was submitted (as amended), to the NSW Department of Planning and Environment for finalisation. The final Draft WLEP is expected to be finalised in the first half of 2023.

31. However, as the Draft WLEP contains a savings provision which provides that a development application made before the commencement of the Draft WLEP and not been finally determined must be determined as if the Draft WLEP had not commenced the applicable local environmental plan for present purposes is the WLEP. That said, I note that the provisions of the Draft WLEP do not affect the amended DA because the provisions of the Draft WLEP in any event are the same as the WLEP as they relate to the site and the amended DA.

Public notification

32. I am informed that the Council notified the DA from 12 December 2022 to 23 January 2023 in accordance with the Willoughby Community Participation Plan dated December 2021 and three (3) written submissions were received.

33. A summary of concerns raised in those submissions is set out at par 23 in Part A of the SOFAC and the Council is satisfied that all relevant planning objections have been addressed by the amended DA and the agreed conditions of consent.

Conclusion

34. As I am satisfied that the parties’ decision is a decision that the Court could have made in in the proper exercise of its functions, I now make orders in accordance with the parties’ decision.

35. The Court notes that:

1. Willoughby City Council, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application no. DA-2022/367 in accordance with the following amended plans and documents:

1. The following amended architectural plans prepared by Designer Ideas:

Drawing No.	Drawing Name	Date
A000, Rev 4	Cover Sheet	14 April 2023
A100, Rev 4	Sheet List	14 April 2023
A101, Rev 4	Proposed Site Plan & Site Analysis	14 April 2023
A102, Rev 4	Existing Site Plan	14 April 2023
A103, Rev 4	Existing Ground Floor Plan	14 April 2023
A104, Rev 4	Existing First Floor	14 April 2023
A105, Rev 4	Demolition Ground Floor	14 April 2023
A106, Rev 4	Demolition First Floor	14 April 2023
A107, Rev 4	Proposed Basement	14 April 2023
A108, Rev 4	Proposed Ground Floor	14 April 2023
A108A, Rev 4	Proposed Pool & Cabana	14 April 2023
A109, Rev 4	Proposed First Floor	14 April 2023
A110, Rev 4	Proposed Roof Plan	14 April 2023
A111, Rev 4	Front Elevation (South)	14 April 2023
A112, Rev 4	Rear Elevation (North)	14 April 2023
A113, Rev 4	Side Elevation (East)	14 April 2023
A114, Rev 4	Side Elevation (West)	14 April 2023
A115, Rev 4	Cabana Elevations	14 April 2023
A116, Rev 4	Sections	14 April 2023
A117, Rev 4	Sections	14 April 2023
A118, Rev 4	Sections	14 April 2023
A119, Rev 4	Sections	14 April 2023
A120, Rev 4	Sections	14 April 2023
A200 a, Rev 4	Site Calculations - BUA	14 April 2023
A201A, Rev 4	Site Calculations - FSR	14 April 2023
A300, Rev 4	Shadow Diagrams – 9am	14 April 2023
A301, Rev 4	Shadow Diagrams – 12pm	14 April 2023
A302, Rev 4	Shadow Diagrams – 3pm	14 April 2023
A400, Rev 4	3Ds	14 April 2023
A401, Rev 4	3Ds	14 April 2023
A402, Rev 4	Front 3Ds	14 April 2023
A403, Rev 4	Rear 3Ds	14 April 2023
A601, Rev 4	Extra Info – Impervious/Landscaping	14 April 2023
A602, Rev 4	Extra Info - Setbacks	14 April 2023
A603, Rev 4	Extra Info – Long Driveway Section	14 April 2023
A604, Rev 4	Identify Heritage Fabric	14 April 2023
A605, Rev 4	Demolition Elevation - Front	14 April 2023
A606, Rev 4	Demolition Elevation - Rear	14 April 2023
A607, Rev 4	Demolition Elevation - East	14 April 2023
A608, Rev 4	Demolition Elevation - West	14 April 2023
A609, Rev 4	Archways To Dining Room	14 April 2023
A610, Rev 4	Staircase Details	14 April 2023
A611, Rev 4	Fencing/Streetscape Elevation	14 April 2023
A612, Rev 4	Fencing Setout And Spec	14 April 2023
A613, Rev 4	Door Schedule	14 April 2023

2. Amended External Finishes Board – 97 Ashley Street Roseville, prepared by Designer Ideas.

3. The following amended landscape plans prepared by Alison Young Garden Design:

Drawing No.	Drawing Name	Date
1 of 10, Rev C	Landscape Concept Plan 01	3 April 2023
2 of 10, Rev C	Landscape Concept Plan 02	3 April 2023

4. Amended Clause 4.6 Request regarding clause 4.3 of Willoughby Local Environmental Plan 2012 prepared by Minto Planning Services dated 19 April 2023.

5. Fabric Survey prepared by Weir Phillips Heritage and Planning dated 19 April 2023.

6. Updated BASIX Certificate number A475834_03 prepared by Designer Ideas Pty Ltd dated 27 April 2023

2. The applicant filed the amended development application with the Court on 31 May 2023.

36. The Court orders:

1. The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

2. The applicant’s written request prepared by Minto Planning Services dated 19 April 2023, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 (“WLEP”), to vary the height of buildings development standard in clause 4.3 of the WLEP is upheld.

3. The appeal is upheld.

4. Development consent is granted to development application no. DA-2022/367, for alterations and additions to the existing heritage building, the change of use to a single dwelling house and the construction of a new tennis court, swimming pool and associated works at 97 Ashley Street, Roseville (Lot 300 in Deposited Plan 1029909), subject to the conditions of consent in Annexure A.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (264030, pdf)

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Decision last updated: 04 July 2023