Issa and Toomeh v Willoughby City Council

[2025] NSWLEC 1173

Land and Environment Court

New South Wales

Medium Neutral Citation:

Issa and Toomeh v Willoughby City Council [2025] NSWLEC 1173

Hearing dates:

Conciliation conference on 6 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA-2024/66 for alterations and additions to single level dwelling involving a new first floor addition, internal alterations, and extension to existing ground floor with new inground swimming pool and associated landscaping on the land at 2 The Rampart, Castlecrag, otherwise known as Lot 171, Deposited Plan 13141, subject to conditions of consent contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: dwelling house development in C4 Environmental Living zone – alterations and additions to dwelling in conservation zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.1, 6.2, Sch 5

Category:

Principal judgment

Parties:

Anthony Issa (First Applicant)
Christine Toomeh (Second Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
M Parino (Solicitor) (Applicant)
J Merlino (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/361742

Publication restriction:

Nil

Judgment

1. COMMISSIONER: In the Sydney suburb of Castlecrag, an existing dwelling known as Albion House, is proposed as the site of alterations and additions. While Albion House is not identified as a heritage item by any environmental planning instrument, it is agreed to be a fine example of the modernist style of architecture.

2. The alterations and additions propose first floor additions, internal alterations to the existing ground floor, new swimming pool, reinstatement of a garage and carport, landscaping, fencing and associated works.

3. To this end, development application DA-2024/66 was lodged by the Applicants in this matter, Mr Anthony Issa and Ms Christine Toomeh, with Willoughby City Council (the Council) on 25 March 2024.

4. As the development application was otherwise not determined, on 30 September 2024, the Applicants filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and assessment Act 1979 (EPA Act).

5. The appeal was listed for mandatory conciliation on 6 March 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. After an onsite view, the conciliation conference convened at Court, at which the parties agreed on certain amendments to the plans before the Court, and the terms of agreed conditions of consent. On this basis, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 6 March 2025, and amended plans and other documents were filed on 7 March 2025 date.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicants, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [24].

10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

11. The site is located in an area identified by the Willoughby Local Environmental Plan 2012 (WLEP) as C4 Environmental Living, in which dwelling house development is permitted with consent where consistent with the objectives for development in the C4 zone, that are as follows:

•  To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•  To ensure that residential development does not have an adverse effect on those values.

•  To ensure that development preserves and enhances the natural features and bushland within the immediate locality (including natural vegetation, geological features, drainage patterns, the water table and the relationship of development to the natural topography) and does not increase bush fire hazard potential.

•  To maintain the scale, character and streetscape of individual localities.

•  To retain and enhance residential amenity, including views, solar access, aural and visual privacy, foreshore setting, landscape quality and heritage value.

12. The proposal is 8m in height, which complies with the relevant height standard at cl 4.3(2) of the WLEP, and also complies with the relevant floor space ratio standard at cl 4.4(2) of the WLEP.

13. The site is also located within the Griffin Heritage Conservation area (Griffin HCA), according to Sch 5 of the WLEP. As such, cl 5.10 of the WLEP requires the effect of the proposed development on the heritage significance of the Griffin HCA. The heritage experts agree that the amended architectural plans result in development that is consistent with the heritage values of the Griffin HCA.

14. The relevant map at cl 6.1(2) of the WLEP identifies the site within Class 5 Acid Sulfate Soils. The site is not within 500m of another class of such soils and the spot levels evident on the site demonstrate that the excavation proposed will not be below 5m AHD.

15. On the basis of the Stormwater Plans prepared by NITMA Consulting, and the terms of Condition 12 of the agreed conditions of consent in respect of subsurface drainage to the rear of the site, the increase of permeable surfaces proposed, and the extent of cut & fill described on architectural plan No.1.19, I conclude those matters at cl 6.2(3) of the WLEP have been satisfactorily addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The proposed development is located within the Sydney Harbour Catchment which is a “regulated catchment” for the purposes of Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). I have considered those matters that are required to be considered in Part 6.2 of the Biodiversity and, on the basis of the Stormwater Plans prepared by NITMA Consulting that depict onsite retention of water in a 10,000L rainwater tank with first flush devices, the increase of permeable surfaces proposed, and the condition requiring detailed stormwater plans to be prepared that incorporate subsurface drainage, I am satisfied that the effect of the development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised, in accordance with s 6.6 of the Biodiversity SEPP.

17. On the basis of the identical documents to those set out above, I am also satisfied of those matters about which the Court must be satisfied at ss 6.7, 6.8 and 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). I accept the statements made on p 10 of the Statement of Environmental Effects prepared by Tudor Planning and Design dated February 2025 as to the occupation of the site and its history. I consider the site likely to be suitable for the development proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. The application is accompanied by a BASIX certificate (Cert No. 1786350S prepared by Mr Anthony Issa dated 6 March 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

20. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

21. 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.

22. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

23. The Court notes the Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amendment to development application No. DA-2024/66, to include the following plans and documents, filed with the Court on 6 March 2025:

1. The Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 approves the amendment to Development Application No. DA-2024/66, to include the following plans and documents, filed with the Court on 7 March 2025:

Plans	Rev	Date
Architectural Plans prepared by Bensen Partners
i) Coverpage/Index, sheet no. 1.1	E	25 February 2025
ii) Existing/Demolition Plan, sheet no. 1.3	E	25 February 2025
iii) Site Plan & Setbacks, sheet no. 1.4	E	25 February 2025
iv) Site Area Calculations, sheet no. 1.5	E	25 February 2025
v) Site Analysis Plan, sheet no. 1.6	E	25 February 2025
vi) Basement Floor Plan, sheet no. 1.7	E	25 February 2025
vii) Ground Floor & Pool Plan, sheet no. 1.8	E	25 February 2025
viii) First Floor Plan, sheet no. 1.9	E	25 February 2025
ix) Roof Plan, sheet no. 1.10	E	25 February 2025
x) Elevations 1, sheet no. 1.11	E	25 February 2025
xi) Elevations 2, sheet no. 1.12	E	25 February 2025
xii) Section AA, sheet no. 1.13	E	25 February 2025
xiii) Section BB, sheet no. 1.14	E	25 February 2025
xiv) External Doors & Windows, sheet no. 1.15	E	25 February 2025
xv) June 21 Shadows, sheet no. 1.16	E	25 February 2025
xvi) Finishes, sheet no. 1.17	E	25 February 2025
xvii) Landscaping, sheet no. 1.18	E	25 February 2025
xviii) Excavation/Cut & Fill Plan, sheet no. 1.19	E	25 February 2025
Reports and Documents
BASIX Certificate (certificate no. A1786350S)	-	6 March 2025
Statement of Environmental Effects prepared by Tudor Planning and Design	-	28 February 2025
Estimated Development Cost	-	26 February 2025

Orders

24. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA-2024/66 for alterations and additions to single level dwelling involving a new first floor addition, internal alterations, and extension to existing ground floor with new inground swimming pool and associated landscaping on the land at 2 The Rampart, Castlecrag, otherwise known as Lot 171, Deposited Plan 13141, subject to conditions of consent contained in Annexure A.

T Horton

Commissioner of the Court

Annexure A (449089, pdf)

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Decision last updated: 21 March 2025