Marcarian v Willoughby City Council

[2025] NSWLEC 1137

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Marcarian v Willoughby City Council [2025] NSWLEC 1137

Hearing dates:

Conciliation conference on 12 February 2025

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification Application DA-2021/18/B for the enclosure of a portion of the lower ground floor area to create a loggia, the addition of a lift, confirmation of the location of the southern garage wall, relocation of the plant room, deletion of condition 2F and amendment of condition 37 of DA-2021/18 at 75 Coolawin Road, Northbridge, is determined by way of approval.

(3) Development Consent No DA-2021/18/B is modified in the terms set out in Annexure A.

(4) Development Consent No DA-2021/18/B as modified by the Court is set out in Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of development consent – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

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

Cases Cited:

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

Willoughby City Council, Community Participation Plan, 2024

Category:

Principal judgment

Parties:

Taleen Marcarian (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
JP Merlino (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/273282

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Willoughby City Council (Council) to modify Development Consent No DA-2021/18 granted for the construction of a part two, part three storey dwelling house with a pool to the rear and associated works (approved development) at 75 Coolawin Road, Northbridge, legally described as Lot 7 in DP 18857 (site).

2. The proposed modification of the consent includes extension of the lower ground floor area to create a loggia, the addition of a lift, confirmation of the location of the southern garage wall, relocation of the plant room and deletion of condition 2F and amendment of condition 37. The approved development has previously been modified under DA-2021/18/A.

3. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (Court Act). I presided over the conciliation conference, which was held on 12 February 2025. The parties reached agreement at the conference as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the Court 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’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent.

5. The agreement reflects Council's approval of amendments to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. There are preconditions to the exercise of the power to modify the development consent under s 4.56 of the EPA Act. The parties’ signed agreement is supported by an agreed statement of jurisdictional prerequisites (statement). Based on the statement, the Joint Expert Report prepared by the parties’ town planning experts, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.56(1A) of the EPA Act. As the original consent was granted by the Court pursuant to an agreement reached in conciliation, no reasons were given by the consent authority for the grant of the consent that is sought to be modified.

7. 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 on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

8. Qualitatively, the proposal will not radically alter or transform the external form or appearance of the approved development, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views, and visual bulk. The qualitative changes may be summarised as follows:

1. Addition of a passenger lift within the building envelope;

2. Confirmation of the location of the southern garage wall on the architectural plans (no physical change on site); and

3. Amendment to condition 37 to share responsibility for maintenance and protection of the hedge with the neighbouring property at 77 Coolawin Road.

9. There are no changes to the use of the site as a residential dwelling or the overall character or appearance to the development approved under the existing consent. The experts and the parties agree, and I accept, that the development will appear substantially the same.

10. Quantitatively, the proposed development as modified provides an additional 29.1m² of gross floor area in the enclosed loggia on the lower ground floor.

11. Having regard to the original and modified application I consider that the fundamental characteristics and essence of the proposed development remain unchanged by the proposed modification, and that the changes are not significant when considered qualitatively or quantitatively in the context of the development as a whole.

12. I have considered the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the proposed development.

13. I have considered the relevant clauses of the Willoughby Local Environmental Plan 2012 (LEP). The proposed development is in the C4 Environmental Living zone and remains permissible and consistent with the zone objectives. The amended application is not compliant with the floor space ratio control in cl 4.4. As confirmed by Pepper J in SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [31]-[36], cl 4.6 does not apply and is not relevant for modification applications. I accept the advice of the parties that there is no change to the proposed development’s compliance with other development standards under WLEP.

14. I am satisfied that the requirements of cl 5.21 (flood planning), 6.1 (acid sulphate soils), 6.2 (earthworks), 6.3 (urban heat) and 6.4 (foreshore development) are met.

15. I note that Chs 2 and 4 of State Environmental Planning Policy (Resilience and Hazards) 2021, and Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 were considered in the grant of the original consent. The proposed development remains compliant with these.

16. The modification application was notified in accordance with Council's Community Participation Plan and s 4.56(1)(c) of the EPA Act. Six submissions were received. The Court also heard from submitters on site at the start of the conciliation conference. These submissions were considered in the preparation of Council's statement of facts and contentions and in the amendments to the proposed development.

Conclusion

17. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

18. 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 modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

19. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

20. The Court notes that:

1. Willoughby City Council, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA-2021/18/B in accordance with the documents listed below:

Sheet No/Rev	Drawing Title	Prepared By	Date
Amended Architectural Plans
A1000/M	Cover Sheet	BJB Architects	14.01.2025
A1001/K	Site Plan	BJB Architects	14.03.2024
A1101/M	Lower Ground Floor Plan	BJB Architects	14.01.2025
A1102/L	Ground Floor Plan	BJB Architects	05.12.2024
A1103/K	First Floor Plan	BJB Architects	14.03.2024
A1104/K	Roof Plan	BJB Architects	14.03.2024
A1201/K	Sections	BJB Architects	14.03.2024
A1202/K	Sections	BJB Architects	14.03.2024
A1301/K	Elevations	BJB Architects	14.03.2024
A1302/K	Elevations	BJB Architects	14.03.2024
A1303/K	Elevations	BJB Architects	14.03.2024
A1304/L	Elevations	BJB Architects	05.12.2024
A1401/K	Floor Area and Impervious Area Calculations	BJB Architects	14.03.2024
A1501/L	Solar Eye Diagrams	BJB Architects	05.12.2024
A1502/L	Solar Eye Diagrams	BJB Architects	05.12.2024
A1511/K	Shadow Diagrams	BJB Architects	14.03.2024
A1512/L	Shadow Diagrams	BJB Architects	05.12.2024
A1513/L	Shadow Diagrams	BJB Architects	05.12.2024
Reports
Amended Schedule of Modifications prepared by BJB Architects
Geotechnical Inspection Letter Reports prepared by GCA dated 24 May 2023, 4 July 2023 and 24 October 2023

Orders

21. The Court orders:

1. The appeal is upheld.

2. Modification Application DA-2021/18/B for the enclosure of a portion of the lower ground floor area to create a loggia, the addition of a lift, confirmation of the location of the southern garage wall, relocation of the plant room, deletion of condition 2F and amendment of condition 37 of DA-2021/18 at 75 Coolawin Road, Northbridge, is determined by way of approval.

3. Development Consent No DA-2021/18/B is modified in the terms set out in Annexure A.

4. Development Consent No DA-2021/18/B as modified by the Court is set out in Annexure B.

……………………….

A Thorpe

Acting Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

14 March 2025 - Correction to a typographical error in the orders of the judgment

Decision last updated: 14 March 2025