Koura v Willoughby City Council

[2023] NSWLEC 1467

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Koura v Willoughby City Council [2023] NSWLEC 1467

Hearing dates:

Conciliation Conference 11 July 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to Development Application No DA-2022/231, as amended, for the demolition of the existing dwelling and swimming pool and the construction of new dwelling, basement garage with storage, swimming pool, tree removal landscaping and associated works at land identified as Lot 16 in Deposited Plan 235319, known as 10 Willis Road, Castle Cove NSW 2069, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition of existing swelling house – excavation & construction new dwelling house –- Innisfallen Castle Estate -conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7, 8.11, 10.3

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

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.2

Environmental Planning and Assessment Regulation 2021, s 37

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.11, 2.12, 4.6

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

Category:

Principal judgment

Parties:

Sam Koura (First Applicant)
Lena Koura (Second Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor)(First and Second Applicant)
A Rutherford (Solicitors)(Respondent)

Solicitor:
Bartier Perry (First and Second Applicant)
Lindsay Taylor (Respondent)

File Number(s):

2023/80448

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) and s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Willoughby City Council (the Council) of DA-2022/231 (the Development Application) for demolition of the existing dwelling house and construction of a new 2-storey dwelling with pool and basement parking (the Proposed Development) at 10 Willis Road Castle Cove, legally described as Lot 16 in DP 235319 (the site). The site is located within the Innisfallen Castle Estate as identified at Part D.1.2 of the Willoughby Development Control Plan 2006.

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at Court on 11 July 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties had reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions concerning existing & desired character, streetscape and retaining walls to the rear. The Council approved an application to amend the Applicant’s plans pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended Development Application with conditions. The Applicant filed an Addendum to the Statement of Environmental Effects (SEE Addendum) dated 12 July 2023.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement dated 11 July 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

7. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following matters.

Section 4.14 EPA Act – Bushfire Prone Land

8. The Site is mapped as bush fire prone land on a map certified under s 10.3(2) of the EPA Act. A Bush Fire Assessment Report prepared by Bushfire Consulting Services dated 3 June 2022 was lodged with the DA and provides that the proposed development complies with the specifications and requirements of Planning for Bush Fire Protection.

Willoughby Local Environmental Plan 2012

9. Compliance with the Willoughby Local Environmental Plan 2012 (WLEP) is generally addressed in the Statement of Environmental Effects. The Site is zoned C4 Environmental Living pursuant to the WLEP and dwelling houses are permissible with consent in the C4 zone.

10. The Site is subject to a maximum building height of 68.9(RL) and a floor space ratio of 0.4:1 pursuant to cll 4.3 and 4.4 of the WLEP respectively. The DA, as amended, complies with these development standards.

Clause 5.10 Heritage conservation

11. The land does not contain or adjoin any heritage items and is not located within a heritage conservation area.

12. The nearest heritage item is located more than 100m to the south (“Innisfallen Castle at 14 Cherry Street”). The proposed development is not within the visual catchment of this heritage item and will not have any impact on the heritage values of Innisfallen Castle, or views to and from this heritage item.

Clause 6.2 Earthworks

13. The extent of the earthworks is limited to excavation for the basement parking, storage area and driveway. Excavation will be undertaken in a manner that avoids potential impacts on water quality within the Middle Harbour catchment. A Geotechnical Investigation Report has been prepared to accompany the DA (annexed to the Class 1 Application). An assessment against the earthworks objectives under cl 6.2 of WLEP is set out in the Statement of Environmental Effects.

State Environmental Planning Policy (Resilience and Hazards) 2021

Chapter 2 Coastal Management

14. Whilst the site land is located within a coastal use zone under Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), it is not located in a coastal management zone.

15. Before development consent is granted to the amended DA, the consent authority must both consider and be satisfied of the various matters set out at ss 2.11 and2.12 of the SEPP Resilience. In accordance with the SEE Addendum dated 12 July 2023, the development is not likely to cause an adverse impact on any of the matters set out at ss 2.11 and 2.12 of the Resilience SEPP.

Chapter 4 Remediation of land

16. Section 4.6 of the Resilience SEPP requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

17. The Court is satisfied that consent can be granted because the site and adjoining lands have a long history of uninterrupted residential use and no activities have been conducted on or near the site that would likely create any potential for land contamination.

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

18. The DA, as amended, is accompanied by BASIX Certificate No 1316920S_02. that shows the proposed works satisfy the relevant requirements of the BASIX SEPP by incorporating commitments set out in the certificate.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. The Site falls within the Sydney Harbour Catchment under Chapter 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP (Biodiversity and Conservation) 2021). The State Environmental Planning Policy Amendment (Water Catchments) repealed this Chapter and consolidated its provisions under Chapter 6 SEPP (Biodiversity and Conservation) 2021, effective from 21 November 2022. As the DA was lodged before the commencement of this amendment, s 6.65(1) of SEPP (Biodiversity and Conservation) 2021 provides that the former provisions continue to apply.

20. Chapter 10 applies to land within the Sydney Harbour Catchment and applies to the waterways and land adjoining the waterways, within the Sydney Harbour Catchment.

21. While the Site is located near Sugarloaf Bay, which falls within the W2 Environment Protection Zone, it is not located within or adjoining the foreshore of Sugarloaf Bay, nor is it located within the boundaries of any of the foreshore or waterway zones identified in the zoning map, such as the W5 Water Recreation Zone or the W2 Environmental Protection Zone. No works are proposed within or adjoining the foreshore of Sugarloaf Bay, or any associated zones identified in the zoning map to Chapter 10.

Conclusion:

22. For these reasons, and based on the evidence before me, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

23. 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. 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.

Notations:

24. The Court notes that:

1. Willoughby City Council, as the relevant consent authority, has approved the amendment of the development application under section 38(1) of the Environmental Planning and Assessment Regulation 2021, for Development Application No. DA-2022/231 to be amended by the substitution of the following amended plans and documents:

1. The following amended architectural plans prepared by Arkhaus:

Drawing Title	Drawing No.	Issue	Date
Cover Page	A001	K	21/06/2023
Demolition Plan	A002	K	21/06/2023
Site Analysis	A003	K	21/06/2023
Retaining Wall Precedents	A004	F	21/06/2023
Front Yard Precedents	A005	D	21/06/2023
Site Plan	A006	K	21/06/2023
Impervious Calculations Plan	A007	K	21/06/2023
Development Data	A008	K	21/06/2023
DCP Footprint Calculation	A009	J	21/06/2023
Retaining Wall Plan	A010	J	21/06/2023
Basement Floor Plan	A101	K	21/06/2023
Ground Floor Plan	A102	K	21/06/2023
First Floor Plan	A103	K	21/06/2023
Roof Level Plan	A104	K	21/06/2023
East Elevation	A201	K	21/06/2023
South Elevation	A202	K	21/06/2023
North Elevation	A203	K	21/06/2023
West Elevation	A204	K	21/06/2023
Streetscape	A205	J	21/06/2023
External Finishes – Schedule	A206	K	21/06/2023
External Finishes – Schedule	A207	K	21/06/2023
Section	A30	K	21/06/2023
Section	A302	K	21/06/2023
Section	A303	L	21/06/2023
Shadow Diagrams	A1301	K	21/06/2023
DCP D1.2.1 Height of the Development	A1302	K	21/06/2023

2. The following amended landscape plans prepared by Canvas Landscape Architects:

Drawing Title	Drawing No.	Revision	Date
Landscape plan: ground floor & first floor	S.34-L101	B	21/06/2022
Landscape typical details, plant schedule & maintenance schedule	S.34 – L102	B	21/06/2023

3. BASIX Certificate 1316920S_02 and NatHERS Certificate 00087611999.

Orders:

25. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA-2022/231, as amended, for the demolition of the existing dwelling and swimming pool and the construction of new dwelling, basement garage with storage, swimming pool, tree removal landscaping and associated works at land identified as Lot 16 in Deposited Plan 235319, known as 10 Willis Road, Castle Cove NSW 2069, subject to the conditions of consent in Annexure A.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Amendments

07 September 2023 - Pursuant to UCPR r 36.17 typographical errors at Order (2) and Paragraphs [1] and [24] are amended.

Decision last updated: 07 September 2023