Metro NSWPV 26 Pty Ltd v Willoughby City Council

[2023] NSWLEC 1758

Land and Environment Court

New South Wales

Medium Neutral Citation:

Metro NSWPV 26 Pty Ltd v Willoughby City Council [2023] NSWLEC 1758

Hearing dates:

Conciliation conference held on 5 December 2023

Date of orders:

12 December 2023

Decision date:

12 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

Proceedings 2022/386077

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-2022/228, as amended, seeking Torrens title subdivision of one lot into four lots, and construction of access driveways and stormwater infrastructure to all new lots, on Lot D Deposited Plan 314721, also known as 2-6 Second Avenue, Willoughby East is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away, as a result of the Amended Application in the sum of $1,500.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

Proceedings 2022/386101

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-2022/229, as amended, seeking demolition of existing buildings (Units A, C and D), partial demolition of an existing building (Unit B), and alterations and additions to a heritage building (the former Tresillians Nursing Home), construction of a swimming pool, garage, courtyard, landscaping and associated works, on Lot D Deposited Plan 314721, also known as 2-6 Second Avenue, Willoughby East is determined by the grant of consent, subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – two separate but related appeals – Torrens title subdivision – demolition - alterations and additions to heritage building - conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

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

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

Willoughby Local Environmental Plan 2012, cll 2.3, 4.3, 4.6, 4.16, 5.10, 6.1, 6.2, Sch 5 Pt 1

Texts Cited:

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Metro NSWPV 26 Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
M Harker (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2022/386077 and 2022/386101

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These two appeals lodged by the Applicant, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) relate to two separate development applications, on the same land, being on Lot D Deposited Plan 314721, also known as 2-6 Second Avenue, Willoughby East (the site). The appeals are against the deemed refusal of each of the development applications by Willoughby City Council (Council).

2. The appeal (2022/386077) relating to Development Application DA-2022/228 (the subdivision DA) seeks Torrens title subdivision of one lot into four lots, and construction of access driveways and stormwater infrastructure to all new lots.

3. The appeal (2022/386101) relating to Development Application DA-2022/229 (the demolition DA) seeks demolition of existing buildings (Units A, C and D), partial demolition of an existing building (Unit B), and alterations and additions to a heritage building (the former Tresillians Nursing Home), construction of a swimming pool, garage, courtyard, landscaping and associated works.

Background

4. The DA’s were lodged with Council on 29 July 2022.

5. The Applicant appealed against the deemed refusal of both DA’s, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. The Council agreed for the Applicant to amend the plans and documents that support the DA’s, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

7. 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 without a site view and held in person.

8. Based on the amended DA’s and the agreed conditions of consent for each DA, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed that the contentions of Council have been considered in a merit assessment and are resolved, and the issues raised by objectors have also been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Applications DA-2022/228 and DA-2022/229, with conditions.

9. 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 of all relevant jurisdictional requirements, to grant consent to Development Applications DA-2022/228 and DA-2022/229, subject to conditions in Annexure A.

Jurisdictional prerequisites

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

1. Willoughby Local Environmental Plan 2012 (WLEP):

1. Pursuant to cl 2.3 of the WLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent and has had regard to the objectives of the zone.  The amended DA’s sufficiently address all the relevant objectives, aims, standards and provisions of the WLEP.

2. It is noted there is a numerical breach of the height of the existing building, pursuant to cl 4.3 of the WLEP and relevant to the demolition DA (2022/229). The breach in the height development standard relates to an existing (heritage) building, and there are no works proposed in the DA that results in a further breach of the height standard. Under this circumstance, a written request to vary the height standard, pursuant to cl 4.6 of the WLEP is not required.

3. The site contains an existing building, identified as Heritage Item I227, the Tresillian Nursing Home, being of local significance, pursuant to Sch 5, Part 1 of the WLEP. The site is not located within a Conservation Area, however, adjoins Conservation Area C12, Willoughby Park, being of local significance. Clause 5.10 of the WLEP is engaged in consideration of the DA’s, and specifcially for the demolition DA, which seeks works to the existing heritage building. The DA’s rely on a Statement Heritage Impact, prepared by Heritage 21, dated June 2023, and an Addendum (One) to this report, dated on August 2023. It is noted that internal refurbishment of the heritage building does not form part of the DA’s, and is addressed by deferred commencement conditions relating to the demolition DA, pursuant to s 4.16(3) of the EPA Act.

4. The site is within an area mapped as being Class 5 Acid Sulphate Soils, pursuant to cl 6.1 of the WLEP. The DA’s are supported by a geotechnical report by EI Australia, dated 15 September 2023. The requirements of cll 6.1 and 6.2 (earthworks) are sufficiently addressed by the proposed development.

2. 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 use of the site being historically for residential purposes, as assessed by Council, documents that support the DA’s and the agreed conditions of consent, the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

2. The DA’s are supported by: a Preliminary Site Investigation (Stage 1), prepared by Sydney Environmental Group, dated 20 December 2021; Detailed Site Investigation (Stage 2), prepared by Sydney Environmental Group, dated 19 April 2023; and a Remedial Action Plan, Sydney Environmental Group, dated 19 April 2023. The documents confirm the site can be made suitable for the intended use.

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

1. A BASIX Certificate (A459472_03), issued on 12 October 2023 is relevant to the proposed development in the demolition DA, as amended, and is identified in the conditions of consent.

11. The Willoughby Development Control Plan 2006 (WDCP) is a relevant consideration of the Council in its merit assessment and Court with regards to notification, as follows:

1. The original DA’s were notified to residents, with six and 10 submissions in objection received for the Demolition DA and Subdivision DA, respectively. The amended DA’s were not renotified, however prior to the conciliation, Council has advised that residents were informed of the amendments that supported each of the agreements made. Written submissions provided by residents have informed Council’s merit assessment. No residents sought to address the Court at the conciliation.

2. The Council advised that the relevant requirements of the WDCP are generally complied with, based on the amended plans and supporting documents to the amended DA’s, and as described in the agreed conditions of consent.

12. Pursuant to s 23 of the EPA Reg, the DA’s have satisfied the Court with the provision of consent from relevant landowner. All proposed works are contained within the site.

Grant of consent

13. Based on the amended plans and supporting documents to the DA’s, 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.

14. The Council has undertaken an appropriate merit assessment of the proposed development, and the parties have provided jurisdictional assessment relevant for the Court consideration. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA’s and supporting documents, in addition to conditions of consent.

15. I am satisfied, based on the evidence before me and as explained by the parties, that there are no jurisdictional impediments to these agreements and that Development Application’s DA-2022/228 and DA-2022/229, should be granted consent.

16. 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.

Proceedings 2022/386077

17. The Court notes that:

1. 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-2022/228.

2. The applicant has filed the amended documents related to the DA with the Court on 30 November 2023.

18. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-2022/228, as amended, seeking Torrens title subdivision of one lot into four lots, and construction of access driveways and stormwater infrastructure to all new lots, on Lot D Deposited Plan 314721, also known as 2-6 Second Avenue, Willoughby East is determined by the grant of consent, subject to the conditions in Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away, as a result of the Amended Application in the sum of $1,500.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

Proceedings 2022/386101

19. The Court notes that:

1. 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-2022/229.

2. The applicant has filed the amended documents related to the DA with the Court on 30 November 2023.

20. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-2022/229, as amended, seeking demolition of existing buildings (Units A, C and D), partial demolition of an existing building (Unit B), and alterations and additions to a heritage building (the former Tresillians Nursing Home), construction of a swimming pool, garage, courtyard, landscaping and associated works, on Lot D Deposited Plan 314721, also known as 2-6 Second Avenue, Willoughby East is determined by the grant of consent, subject to the conditions in Annexure B.

S Bish

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 12 December 2023