Liu v Willoughby City Council

[2025] NSWLEC 1048

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liu v Willoughby City Council [2025] NSWLEC 1048

Hearing dates:

Conciliation conference on 10 and 11 December 2024

Date of orders:

30 January 2025

Decision date:

30 January 2025

Jurisdiction:

Class 1

Before:

Nichols AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application DA-2023/309 as amended, for the construction of a dwelling, garage, swimming pool, landscaping and associated works, including demolition of the existing dwelling, at 40 Lower Cliff Avenue, Northbridge (Lot 13, Section 2, DP14572) is determined by the grant of development consent subject to the conditions included at Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

Catchwords:

APPEAL – development application – dwelling – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation SEPP) 2021, Pt 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6, Ch 4

Willoughby Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.4AA, 4.5, 6.1, 6.2, 6.3, 6.4

Texts Cited:

Willoughby Development Control Plan 2012

Category:

Principal judgment

Parties:

Yang Liu (First Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Addisons (Applicants)
Apex Planning & Environment Law (Respondent)

File Number(s):

2024/241451

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal of DA-2023/309 by Willoughby City Council lodged on 24 November 2023. This appeal concerns a development application for the construction of a dwelling, garage, swimming pool, landscaping and associated works, including demolition of the existing dwelling, at 40 Lower Cliff Avenue, Northbridge (Lot 13, Section 2, DP14572).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 December 2024. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the development application. These amendments included a revision of plans and material referred to at paragraph 2 of the s 34 agreement between the parties.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice, I make the following findings in relation to jurisdiction.

8. I accept the parties' advice that Willoughby Local Environmental Plan 2023 (WLEP) applies to the site. The proposed residential development is permissible with consent under cl 2.3.

Willoughby Local Environmental Plan 2012 (WLEP)

9. The site is zoned C4 Environmental Living. The proposed development is permissible under this zone.

10. Clause 2.3 of the WLEP indicates that regard must be had to the zone objectives when determining the Development Application. The zone objectives for C4 Environmental Living are:

• 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.

11. I am satisfied by details in the Statement of Environmental Effects by GSA Planning dated 9 November 2023 that the proposed development, as amended, is compatible with the C4 Environmental Living zone objectives.

12. Clause 2.7 of the WLEP requires consent for demolition works. I am satisfied this judgement and s 34 agreement is a valid consent for these works.

13. Clause 4.3 of the WLEP requires the height of a building on any land to not exceed the maximum height shown for the land on the Height of Buildings Map. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

14. Clause 4.4, 4.4A and 4.5 of the WLEP requires the maximum floor space ratio (FSR) for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map, and provide for exceptions to the FSR and calculations of FSR and site area. Despite minor variations to the development standard, I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

15. Clause 6.1 of the WLEP provides that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. Development consent is required for the carrying out of works described on land shown on the Acid Sulfate Soils Map. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

16. Clause 6.2 of the WLEP requires consideration of whether the development will disrupt, or have any detrimental effect on, drainage patterns and soil stability in the locality, the likely future use or redevelopment of the land, the quality of the fill or the soil to be excavated, or both, the effect of the development on the existing and likely amenity of adjoining properties, the source of fill material and the destination of excavated material, the likelihood of disturbing relics, the proximity to and potential for adverse impacts on a watercourse, drinking water catchment or environmentally sensitive area, and ensure appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. I am satisfied that the requirements of this clause have been considered by details provided in the Geotechnical Investigation and Slope Risk Assessment by Morrow Geotechnics dated 5 October 2022.

17. Clause 6.3 of the WLEP provides that new development incorporates effective design and ongoing operation to reduce and remove urban heating from the environment and protect community health and wellbeing. This requires consideration be given to whether the facade and roof of the proposed building and paved surfaces are designed to reduce adverse effects of solar heat on the surrounding land, including private open space and the public domain, and that the awnings and eaves of the building are designed to provide shelter from the sun and improve public comfort at street level, and the heating, ventilation and air conditioning systems of the building are designed to minimise the release of heat in the direction of private open space and the public domain, and the development maximises the use of green infrastructure that is strategically designed and managed to support a good quality of life in an urban environment, and the development accommodates sufficient tree canopy, open space and deep soil zones to achieve urban cooling benefits, and the building is designed to achieve high passive thermal performance. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

18. Clause 6.4 of the WLEP requires consideration that the development on the foreshore area will contribute to achieving the objectives for the zone in which the land is located through the appearance of a proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, the development will not cause environmental harm, the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and that sea level rise or change of flooding patterns as a result of climate change have been considered. I am satisfied that the requirements of this clause have been considered by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

Willoughby Development Control Plan 2023 (WDCP)

19. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part B - Residential Development is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

20. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part C - Development in the C4 Environmental Living Zone is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

21. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part F - Transport and Parking Management is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

22. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part G - Vegetation Management is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023 and the Arboricultural Impact Assessment Report by NSW Tree Services dated 16 August 2023 as amended.

23. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part I - Water Management is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023 and Concept Stormwater Drawings prepared by Smart Structures Australia (various dates).

24. The proposed development is subject to the provisions of WDCP. The Respondent identifies that Part J - Building Sustainability is relevant to this matter. I am satisfied that the requirements of this clause have been demonstrated by details provided in the Statement of Environmental Effects by GSA Planning dated 9 November 2023.

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

25. A valid BASIX certificate has been submitted in accordance with the requirements of s 27 of the EPA Reg.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. The site is located within the catchment of the Sydney Harbour. In giving consent, Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation SEPP) 2021 (Biodiversity and Conservation SEPP) under s 6.6 requires consideration of whether the development:

(a) will have a neutral or beneficial effect on the quality of water entering a waterway,

(b) will have an adverse impact on water flow in a natural waterbody,

(c) will increase the amount of stormwater run-off from a site,

(d) will incorporate on-site stormwater retention, infiltration or reuse,

(e) will have an impact on the level and quality of the water table,

(f) will have a cumulative environmental impact on the regulated catchment, and

(g) has made adequate provision to protect the quality and quantity of ground water.

27. Based on the Concept Stormwater Drawings prepared by Smart Structures Australia (various dates) and subject to the relevant conditions of consent, I am satisfied the effect 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 and that adequate consideration has been given to the requirements of Part 6.2 of the Biodiversity and Conservation SEPP .

State Environmental Planning Policy (Resilience and Hazards) 2021

28. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires consideration of whether the land is contaminated, and if so then ensure that they are satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted or will be suitable after remediation. According to parties' submissions the land has historically been used for residential purposes and I am satisfied that the site is suitable for the intended use, subject to the implementation of the relevant conditions of consent. Further assessment under Ch 4 of the SEPP Resilience and Hazards is not required.

Bushfire prone land

29. Section 4.14 of the EPA Act requires consent for development on bush fire prone land to have been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment, stating that the development conforms to the relevant specifications and requirements. I am satisfied by the details in the Statement of Environmental Effects by GSA Planning dated 9 November 2023 and the certificate contained within the Bushfire Assessment Report by Bushfire Consulting Services dated 3 April 2023 that the requirements of development on bushfire prone land have been satisfied.

Public interest

30. I note and accept the parties' advice that the Development Application was notified in accordance with the EPA Act. One submission was received and has been addressed in the Statement of Environmental Effects by GSA Planning dated 9 November 2023. I am satisfied consideration has been given to the public interest.

Owner’s Consent

31. As provided in the in the Statement of Environmental Effects by GSA Planning dated 9 November 2023, the Development Application was made with the written consent of the owner of the subject site.

Conclusion

32. Having reached the state of satisfaction that the decision is one that the Court could make in the proper 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)). The orders I make below have this effect.

33. 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 EPA Act.

34. The Court notes that:

1. The Willoughby City Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-2023/309 to rely upon the plans and documents in Condition 1 of Annexure A.

Orders

35. The Court orders that:

1. The appeal is upheld.

2. Development application DA-2023/309 as amended, for the construction of a dwelling, garage, swimming pool, landscaping and associated works, including demolition of the existing dwelling, at 40 Lower Cliff Avenue, Northbridge (Lot 13, Section 2, DP14572) is determined by the grant of development consent subject to the conditions included at Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

P Nichols

Acting Commissioner of the Court

Annexure A

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Decision last updated: 30 January 2025