Dale v Willoughby City Council
[2024] NSWLEC 1779
•04 December 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: Dale v Willoughby City Council [2024] NSWLEC 1779 Hearing dates: Conciliation conference on 21 November 2024 Date of orders: 04 December 2024 Decision date: 04 December 2024 Jurisdiction: Class 1 Before: Miller AC Decision: The orders of the Court are:
(1) Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicants are granted leave to amend development application DA-2023/262 to rely upon the amended plans contained at Annexure A.
(2) The appeal is upheld.
(3) Development Application No. DA-2023/262 for demolition and construction of front fence, sliding driveway and pedestrian gate, vehicle parking space, tree removal and landscaping and associated works at 14 Wyalong Street, Willoughby, is determined by the grant of consent subject to the conditions contained in Annexure A.
Catchwords: APPEAL – development application – front fence and parking space – tree removal - conciliation conference – agreement reached – orders made
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979, ss 34AA, 34
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Willoughby Local Environmental Plan 2012, cll 2.7, 5.10, 6.1, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6, Chs 2, 6
Category: Principal judgment Parties: Joshua Mark Dale (First Applicant)
Laura Leigh Dale (Second Applicant)
Willoughby City Council (Respondent)Representation: Counsel:
Solicitors:
R White (Applicant)
T Poisel (Respondent)
Chambers Russell Lawyers (Applicant)
Apex Planning & Environment Law (Respondent)
File Number(s): 2024/224529 Publication restriction: Nil
JUDGMENT
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COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal of Development Application No DA-2023/262 for demolition and construction of front fence, sliding driveway and pedestrian gate, vehicle parking space, tree removal and landscaping, and associated works, at 14 Wyalong Street, Willoughby (Lot A DP 106677) (the Site) by Willoughby City Council.
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The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference which I presided over was held on 21 November 2024.
Outcome
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At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 one that the Court could have made in the proper exercise of its functions.
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The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EP&A Act. The signed agreement is supported by a Jurisdiction Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Statement together with the documents referred to therein, the Amended Class 1 Application and its attachments, the joint reports filed in the proceedings, the Council’s bundle of documents filed in the proceedings, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EP&A Act.
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The Council as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg). The plans and documents comprising the amended application were submitted to the Court on 21 November 2024 and are listed under condition 1 of the conditions of consent at Annexure A.
Jurisdictional matters
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As the presiding 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
Willoughby Local Environmental Plan 2012 provisions
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The development works are for purposes ancillary to a residential dwelling house, which is a permissible use in the R2 – Low Density Residential zone in which the site is located, pursuant to Willoughby Local Environmental Plan 2012 (WLEP 2012).
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The development is consistent with the objectives of the R2 – Low Density Residential zone including:
To provide for the housing needs of the community within a low density residential environment;
To accommodate development that is compatible with the scale and character of the surrounding residential development;
To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality; and
To retain the heritage values of particular localities and places, and to ensure heritage items and conservation areas are not damaged, demolished or otherwise adversely impacted by new development.
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The development is consistent with cl 2.7 of WLEP 2012 as development consent is sought for the proposed demolition.
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The subject site is located within the Artarmon Heritage Conservation Area in accordance with Schedule 5 and the Heritage Map of WLEP 2012 and is agreed to be a contributory item. In accordance with the requirements of cl 5.10(4) of WLEP 2012 consideration has been given to the impact of the proposed development on the heritage significance of the heritage conservation area and it has been found to be acceptable having regard to the amended plans which provide for a reduction in the size of the proposed car parking space, retention of the front pedestrian entry path which is of heritage significance, treatment of the proposed parking space using gravel and replacement tree planting. I accept the agreement of the parties and the relevant experts that the amended proposal will not result in an adverse heritage impact and is therefore acceptable having regard to this provision.
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The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and accordingly no further assessment is required in accordance with cl 6.1 of WLEP.
State Environmental Planning Policy (Resilience and Hazards) 2021
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Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and the parties agree that the site has a long history of residential use and therefore contamination is unlikely. No further investigation in accordance with the SEPP is therefore required.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
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Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact has been found to be acceptable subject to replacement planting as required by the plans, and the agreed conditions of consent.
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The site is within the Sydney Harbour Catchment and accordingly the provisions of Ch 6 of the BC SEPP also apply. I am satisfied that adequate consideration has been given to the relevant provisions of Ch 6 and that no adverse environmental impacts will result given the minor nature of the proposed development and the minimal potential for impact. I also note that relevant conditions of consent are included at Annexure A to minimise any impact during construction including in respect of sediment and erosion control and stormwater drainage.
Other Matters
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Owner’s consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EP&A Reg with the applicants being the landowners.
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The development application, in its original form, was notified between 9 October and 23 October 2023. No submissions were received.
Conclusion
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Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
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In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.
Orders
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The orders of the Court are:
Pursuant to s38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicants are granted leave to amend development application DA-2023/262 to rely upon the amended plans contained at Annexure A.
The appeal is upheld.
Development Application DA-2023/262 for demolition and construction of front fence, sliding driveway and pedestrian gate, vehicle parking space, tree removal and landscaping, and associated works at 14 Wyalong Street, Willoughby, is determined by the grant of consent subject to the conditions contained in Annexure A.
………………………….
Helena Miller
Acting Commissioner of the Court
Annexure A
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Decision last updated: 04 December 2024
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