Mackenzie Architects International Pty Ltd v Willoughby City Council

[2023] NSWLEC 1712

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Willoughby City Council [2023] NSWLEC 1712

Hearing dates:

Conciliation conference held on 20 October 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2021/190, which seeks the demolition of the existing structures and construction of a multi dwelling housing development, consisting of four (4) dwellings, basement car parking, landscaping and associated works on Lot B in Deposited Plan 358599, also known as 15 Talus Avenue, Naremburn, is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant must pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98, 2.100

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

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

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 16A, 17

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

Willoughby Local Environmental Plan 2012, cl 2.3

Texts Cited:

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
K Potter (Applicant)
J Merlino (Solicitor) (Respondent)

Solicitors:
Yates Law
HWL Ebswsorth

File Number(s):

2023/152289

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against e refusal of Development Application DA2021/190 (the DA) by the Willoughby City Council (the Council), which as amended, seeks demolition of existing structures, tree removal and the construction of multi-dwelling housing for four dwellings over basement parking on Lot B in Deposited Plan 358599, also known as 15 Talus Street, Naremburn (the site).

Background

2. The DA was lodged with Council on 30 June 2021. The original DA was notified to residents, with two submissions received, and was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Council refused the DA on 5 May 2023, and the Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced with a site view. During the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

5. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA2021/190, with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must 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. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA2021/190, subject to conditions in Annexure A.

Jurisdictional prerequisites

7. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Willoughby Local Environmental Plan 2012 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development, as described to the Court, is permissible with consent. I am satisfied that the amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the WLEP.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH):

1. The DA satisfies all relevant provisions of the SEPP ARH. pursuant to cl 10(1)(a) of the SEPP ARH, the proposed development is permissible in the R3 zone. The site is located within 600 m of public transport and is considered accessible, pursuant to cl 10(1)(d).

2. The DA is assessed are being compatible with the character of the local area, pursuant to cl 16A. The development will be managed by a community housing provider and has an appropriate gross floor area dedicated for affordable housing over a minimum of 10 years, pursuant to cl 17.

3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site is located adjacent to a rail corridor, engaging s 2.98 of the SEPP Infrastructure. The DA was referred to Sydney Trains whom provided general terms of approval, that are included in the conditions of consent.

2. Pursuant to s 2.100, the DA is supported by Acoustic Report, prepared by Acoustic Noise and Vibration Solutions Pty Ltd, dated 30 March 2021. The amended design has considered and seeks to mitigate the potential for noise impact relating to the nearby rail corridor.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6.

5. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The DA proposes the removal of vegetation, engaging Ch 2 of the SEPP Biodiversity. The DA is supported by an Arboricultural Impact Assessment Report, prepared by Advanced Treescape Consulting, dated 5 February 2021. The relevant provisions of Ch 2 have been considered and no adverse impact is assessed.

2. The site is located within the catchment of Sydney Harbour, thereby engaging the provisions of Ch 6 of the SEPP Biodiversity. The relevant provisions of Ch 6 have been considered and no adverse impact is assessed.

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

1. A BASIX Certificate (1172304M_03), issued on 13 November 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

7. Willoughby Development Control Plan 2006 (WDCP):

1. The original DA was publicly notified in accordance with the WDCP, with two submissions received. The relevant requirements of the WDCP have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

8. Pursuant to cl 49 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.

Grant of consent

9. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA2021/190 can be granted consent.

12. 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.

13. The Court notes that:

1. Willoughby City Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA2021/190 as follows:

1. Architectural plans:

Plan No.	Plan Title	Drawn by	Dated
A0001 (Revision G)	Cover Page	Mackenzie Architects International	7/11/2023
A0002 (Revision A)	Site Analysis	Mackenzie Architects International	12/05/2021
A0003 (Revision D)	Site Plan	Mackenzie Architects International	25/10/2023
A0004 (Revision C)	Demolition Plan	Mackenzie Architects International	25/10/2023
A1001 (Revision H)	Basement Plan	Mackenzie Architects International	25/10/2023
A1002 (Revision I)	Ground Floor Plan	Mackenzie Architects International	7/11/2023
A1003 (Revision F)	First Floor Plan	Mackenzie Architects International	25/10/2023
A1004 (Revision E)	Second Floor Plan	Mackenzie Architects International	25/10/2023
A1005 (Revision E)	Roof Plan	Mackenzie Architects International	25/10/2023
A2001 (Revision F)	North & East Elevations	Mackenzie Architects International	7/11/2023
A2002 (Revision F)	South & West Elevations	Mackenzie Architects International	25/10/2023
A2101 (Revision E)	Sections	Mackenzie Architects International	25/10/2023
A2102 (Revision E)	Sections	Mackenzie Architects International	25/10/2023
A2103 (Revision B)	Driveway Section E	Mackenzie Architects International	25/10/2023
A3001 (Revision F)	GFA Calculations	Mackenzie Architects International	2/11/2023
A3002 (Revision F)	Landscape Calculations	Mackenzie Architects International	25/10/2023
A3003 (Revision F)	Deep Soil Calculations	Mackenzie Architects International	25/10/2023
A3004 (Revision C)	Ground Floor Post Adaptable	Mackenzie Architects International	25/10/2023
A3005 (Revision C)	First Floor Pre - Post Adaptable	Mackenzie Architects International	25/10/2023
A3006 (Revision C)	External Finishes and Materials	Mackenzie Architects International	25/10/2023
A3007 (Revision E)	Building Height Plan	Mackenzie Architects International	25/10/2023
A4001 (Revision D)	9am & 10am Solar Access	Mackenzie Architects International	25/10/2023
A4002 (Revision D)	11am & 12pm Solar Access	Mackenzie Architects International	25/10/2023
A4003 (Revision D)	1pm & 2pm Solar Access	Mackenzie Architects International	25/10/2023
A4004 (Revision D)	3pm Solar Access	Mackenzie Architects International	25/10/2023
A4101 (Revision B)	Existing 9am Shadow Diagram	Mackenzie Architects International	25/10/2023
A4102 (Revision B)	Existing 12pm Shadow Diagram	Mackenzie Architects International	25/10/2023
A4103 (Revision B)	Existing 3pm Shadow Diagram	Mackenzie Architects International	25/10/2023
A4104 (Revision D)	Proposed 9am Shadow Diagram	Mackenzie Architects International	25/10/2023
A4105 (Revision D)	Proposed 12pm Shadow Diagram	Mackenzie Architects International	25/10/2023
A4106 (Revision D)	Proposed 3pm Shadow Diagram	Mackenzie Architects International	25/10/2023

2. Landscape Plans:

Plan No.	Plan Title	Drawn by	Dated
LPS34 21- 225/1 (Revision H)	Hardscape Plan	Conzept Landscape Architects	02/11/2023
LPS34 21- 225/2 (Revision H)	Landscape Plan	Conzept Landscape Architects	02/11/2023
LPS34 21- 225/3 (Revision H)	Landscape Plan	Conzept Landscape Architects	02/11/2023
LPS34 21- 225/4 (Revision H)	Sections	Conzept Landscape Architects	02/11/2023
LPS34 21- 225/5 (Revision H)	Details	Conzept Landscape Architects	02/11/2023
LPS34 21- 225/6 (Revision H)	Specifications	Conzept Landscape Architects	02/11/2023

3. Stormwater Management Plans:

Plan No.	Plan Title	Drawn by	Dated
201201DA-C01 (Revision 9)	Cover Sheet – Notes and Legends	Greenview Consulting Pty Ltd	01/11/2023
201201DA-C02 (Revision 9)	Basement 1 Drainage Plan	Greenview Consulting Pty Ltd	01/11/2023
201201DA-C03 (Revision 10)	Ground Floor Drainage Plan	Greenview Consulting Pty Ltd	01/11/2023
201201DA-C04 (Revision 9)	Site Stormwater Details Sheet 1	Greenview Consulting Pty Ltd	01/11/2023
201201DA-C05 (Revision 6)	Site Stormwater Details Sheet 2	Greenview Consulting Pty Ltd	01/11/2023
201201DA-C06 (Revision 6)	OSD Catchment Plan	Greenview Consulting Pty Ltd	01/11/2023

4. Manoeuvring Swept Paths prepared by Terrafic Pty Ltd dated 31 October 2023;

5. Letter prepared by Chapman Planning Pty Ltd dated 2 November 2023;

6. BASIX Certificate number 1172304M_03 prepared by Greenview Consulting Pty Ltd dated 13 November 2023; and

7. NatHERS Certificate prepared by Greenview Consulting Pty Ltd dated 13 November 2023.

2. The Applicant has filed the amendments to the Development Application DA2021/190 with the Court on 15 November 2023.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2021/190, which seeks the demolition of the existing structures and construction of a multi dwelling housing development, consisting of four (4) dwellings, basement car parking, landscaping and associated works on Lot B in Deposited Plan 358599, also known as 15 Talus Avenue, Naremburn, is determined by the grant of consent, subject to the conditions in Annexure A.

3. The Applicant must pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 28 November 2023