MH Architects Pty Ltd v Willoughby City Council

[2024] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation:

MH Architects Pty Ltd v Willoughby City Council [2024] NSWLEC 1430

Hearing dates:

Conciliation Conference 19, 20 June 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1)   The appeal is upheld;

(2)   Development consent is granted to Development Application No DA 2023/137 for alterations and additions to existing dwelling at 61 Neerim Road, Castle Cove, NSW 2069, known as Lot 236 in DP 30581, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions dwelling house – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7, 10.3

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

Environmental Planning and Assessment Regulation s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Willoughby Local Environmental Plan 2012, cll 4.4A, 4.6

Texts Cited:

NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019

Category:

Principal judgment

Parties:

MH Architects Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
J Marsland (Solicitor)(Respondent)

Solicitors:
Project Lawyers (Applicant)
Apex Law (Respondent)

File Number(s):

2023/463385

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Willoughby City Council (the Council) of DA‑2023/137 (the Development Application - DA) for alterations and additions to a dwelling house (the Proposed Development) on land at 61 Neerim Road, Castle Cove, NSW 2069, known as Lot 236 in DP 30581 (the Site).

2. 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 site and at Court. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The Applicant has provided the amended plans to the Respondent to address the unresolved issues in the Statement of Facts and Contentions filed on 2 February 2024 and the Joint Report.

4. Any reference in this judgment to the Proposed Development and the Development Application is to be read as the proposed development and the DA as amended.

5. The parties agree that the amendment of the DA has resolved the Respondent’s contentions, and in those circumstances, the appeal should be settled under a s 34 agreement, and consent granted to the Proposed Development subject to conditions of consent at Annexure A.

6. Council’s reasons for the decision to enter into the s 34 agreement arise largely from amendments that achieve the following:

1. Compliance with the landscaping control;

2. Sufficient cl 4.6 request; and

3. Retention of existing walls to the boundaries.

7. 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 Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction:

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

Environmental Planning and Assessment Act 1979 (EPA Act)

Section 4.14: Consultation and development consent—certain bush fire prone land

9. The site is mapped as bushfire prone land on a map certified under s 10.3(2) of the EPA Act. A Bushfire Protection Assessment Report prepared by Building Code & Bushfire Hazard Solutions dated 16 March 2023 (Bushfire Report) was filed with the Class 1 application. The Bushfire Report provides that the proposed development complies with the specifications and requirements of Planning for Bush Fire Protection 2019 (PBP). Accordingly, the parties agree that development consent, with appropriate conditions attached, is acceptable with regard to s 4.14 of the EPA Act and the PBP.

Section 4.15 Evaluation:

10. The parties agree that all matters contained in s 4.15 of the EPA Act, which are of relevance to the Proposed Development have been taken into consideration, and the Proposed Development is acceptable subject to conditions. Owner’s consent was obtained for the DA and all proposed works will be contained within the boundary of the property.

State Environmental Planning Instruments (SEPPs)

11. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. State Environmental Planning Policy (Resilience and Hazards) 2021

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

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

Willoughby Local Environmental Plan 2012 (WLEP)

12. The parties assessment and conclusions in respect of the relevant WLEP planning controls are set out in full as follows:

“Zoning and Land Use Table

(34) The Site is located within the C4 Environmental Living under the WLEP. The proposed alterations and additions to the dwelling house are permissible with consent.

(35) The parties agree that the Amended Application is consistent with the objectives of the C4 Environmental Living zone for the following reasons:

(a) the proposed dwelling will not result in adverse impacts on the ecological and aesthetic values of the locality, noting that the proposal is of a similar scale to surrounding residential development within the locality;

(b) the proposed structure has been positioned and designed to step-down and conform with the steeply sloped hillside towards Middle Harbour. This will allow lower levels to be set back beneath the form and retains natural features as the dominant part of the visual catchment;

(c) the form and scale of the proposed dwelling is consistent with the established character of other recently approved dwellings and the emerging character along Neerim Road; and

(d) the proposal will not result in unreasonable amenity impacts to the adjoining properties.

(36) In light of the above, the parties agree that the Amended Application has been designed to provide a high level of amenity for residents and is not anticipated to have any detrimental impacts upon adjoining properties.

Clause 4.3: Height of Buildings

(37) The site has a prescribed maximum building height of 8.5m in accordance with the WLEP.

(38) The parties agree that the Amended Application has a maximum height of 8.4m measured from the natural ground level to the top of parapet on the rear corner of the south-east elevation, and is therefore consistent with the principal standard.

Clause 4.4: Floor Space Ratio

(39) The site is mapped as having a maximum floor space ratio (FSR) of 0.35:1 pursuant to cl 4.4A of the WLEP. The site area is 777.8 sqm, which gives a permissible gross floor area (GFA) of 272.23 sqm.

(40) The amended architectural plans show a gross floor area of 321.39 sqm, being an exceedance of 49.16 sqm above the FSR control (or 18.05%).

(41) Clause 4.6 of the WLEP permits development consent to be granted for development even though the development contravenes the FSR development standard. The development application has been accompanied by a written cl 4.6 statement from the Applicant.

(42) The parties agree that the additional FSR is largely the result of excavation beneath the existing dwelling to improve the connection between the existing dwelling and the pool. The additional floor area has been dispersed across the site and accordingly the additional gross floor area cannot be attributed to a specific component of the development, but rather, it has been efficiently integrated within the building’s design to achieve compatibility with the massing of adjoining development. The proposed works extend to the rear and below the existing bult [sic] form on site, thereby maintaining the existing bulk of the development as viewed from the public domain and improving the integration of the internal living spaces to the lower space. Therefore, there will be no additional amenity impacts to adjoining properties or the public domain with regard to overshadowing, loss of outlook or views, or privacy impacts. The proposed development has also been designed to keep the height below than the maximum allowable height from the street to preserve any views whilst accommodating the bulk into the existing bulk and topography.

(43) Further, the proposal achieves a form and scale compatible with the building envelope controls and the existing streetscape. It is noted the proposed development, whilst presenting a contravention to FSR, remains in character with the height and scale of developments in the vicinity of the site, with a number of dwellings presenting comparable contraventions to the development standard.

(44) In light of the above, the parties agree that the reasons set out in the cl 4.6 [request] demonstrates:

(a) that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case;

(b) there are sufficient environmental planning grounds to justify contravening the development standard (in accordance with cl 4.6(3) of the WLEP); and

(c) that written cl 4.6 statement also identifies how the development is consistent with the objectives of the FSR development standard and the objectives for development within the C4 Environmental Living zone.

(45) Accordingly, the Court can be satisfied that the Applicant’s written request has adequately addressed the matters required to be satisfied by cl 4.6(3) and that the development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the C4 Environmental Living zone.

Clause 5.10: Heritage Conservation

(46) The parties agree that the site is not identified as a heritage item nor is located within a heritage conservation area under Schedule 5 of the WLEP.

Clause 6.1: Acid Sulfate Soils

(47) Clause 6.1 requires the consent authority to consider any potential acid sulfate soil affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage. The subject site falls within a Class 5 area as specified in the Acid Sulfate Soils Map. The proposed works are not located within 500m of Class 1, 2, 3, and 4 land classifications. Although some excavation work is required, the likelihood and risk of exposing actual acid sulfate soils is very low in this instance. Accordingly, an acid sulfate management plan is not required for the Amended Application.

Clause 6.2: Earthworks

(48) The objective of Clause 6.2(1) of the Willoughby Local Environmental Plan 2012 (WLEP) is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. Clause 6.2 requires the Court to consider the matters referred to in clause 6.2(3).

(49) According to the Soil Landscapes of the Sydney 1:100 000 Sheet prepared by G.A. Chapman and C.L. Murphy (1989), the site falls within code “9130ha”.

(50) The Soil Landscape Report for code “9130ha” indicates that the site is underlain by the Hawkesbury Sandstone formation, which typically comprises medium to very course grained quartz sandstone, minor laminated mudstone and siltstone lenses. The site is also located within the Hawkesbury Soil Landscape (Colluvial) comprising rugged rolling to steep hills on Hawkesbury Sandstone, narrow crests and ridges, incised valleys, steep sided slopes and rocky benches, broken scarps and boulders.

(51) In light of the above, the parties agree that the proposed earthworks and excavations are satisfactory and acceptable with regard to the matters listed in Clause 6.2(3) of the WLEP for the following reasons:

(a) the proposal will unlikely disrupt or have any detrimental effect on the drainage patterns and soil stability in the locality as the proposed earthworks are contained largely within the building footprint. Further, given that the property is underlain by the Hawkesbury Sandstone, as analogous to adjacent dwellings, the soil is capable of withstanding the proposed development, subject to the implementation of batters to be verified by a geotechnical professional, or if temporary batters are unsuitable, the implementation of an engineered shoring solution, as designed by reference to relevant geotechnical parameters;

(b) the proposal will unlikely adversely affect the likely future use or redevelopment of the land as the proposed earthworks are designed for the future residential use of the site. Further, excavation is integrated with the future use of the land being a residential dwelling consistent with the C4 Environmental Living Zone;

(c) the Hawkesbury Soil has consistently been deemed suitable for earthworks and there is no indication that the soil underlaying the property contains any material other than virgin excavated natural material;

(d) the proposed excavation is located within the building footprint and does not impact the interface of the existing residential living areas at the upper levels and their relationship to the site boundaries and adjoining properties;

(e) the site has always been a residential site, which to date, exhibits no relics; and

(f) the stormwater plans prepared by Prime Engineering Consultants dated 7 March 2023 at Tab 5 of the Class 1 Application address the stormwater run-off from the development. Accordingly, the proposed earthworks will unlikely have adverse impacts on a watercourse, drinking water catchment or environmentally sensitive area.

(52) The parties agree that earthworks is also addressed by condition 11 (Geotechnical Report) in Annexure A.”

13. I note the Proposed Development requires a cl 4.6 request to justify a contravention of the Floor Space Ratio (FSR) development standard contained in cl 4.4A Exceptions to FSR of the WLEP. I have read the Request drafted by Chapman Planning Pty Ltd dated 20 June 2024 (clause 4.6 request) and the parties analysis set out above which I do not need to repeat.

14. The parties agree that the clause 4.6 request is prepared with the relevant requirements under cl 4.6(3), the development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives of the C4 Environmental Living zone, and there are adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary.

15. The Court accepts and agrees with the parties position and I am satisfied to make the finding that the Applicant’s written request under cl 4.6 of the WLEP to vary the FSR development standard under cl 4.4A of the WLEP for the Proposed Development at 61 Neerim Road, Castle Cove, NSW 2069, is upheld.

Public Consultation

16. The development application was publicly notified to adjoining and surrounding properties between 14 June 2023 and 28 June 2023. No submissions were received in response to the public notification.

Conclusion:

17. For these reasons, based on the evidence before me, and my observations on site, 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.

18. 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:

19. The Court notes that: 

1. The Respondent agrees to the Applicant amending Development Application No DA-2023/137 pursuant to s 38(1) of the Environmental Planning & Assessment Regulation 2021, to include the following plans and documents:

Plans	Rev	Date
Architectural Plans prepared by MH Architects
i) Demolition Plan, dwg no. DA100	F	20 June 2024
ii) Site Plan, dwg no. DA101	F	20 June 2024
iii) Ground Floor Plan – Dimensioned, dwg no. DA103	F	20 June 2024
iv) Lower Ground Floor Plan – Dimensioned, dwg no. DA105	F	20 June 2024
v) Pool Level Plan - Dimensioned, dwg no. DA107	F	20 June 2024
vi) Streetscape Elevation, dwg no. DA200	F	20 June 2024
vii) Elevations 1, dwg no. DA201	F	20 June 2024
viii) Elevations 2, dwg no. DA202	F	20 June 2024
ix) Sections 1, dwg no. DA300	F	20 June 2024
x) Sections 2, dwg no. DA301	F	20 June 2024
Landscape Plans prepared by A Total Concept
i) Lower Ground & Pool Level dwg no. L/01	C	20 June 2024
ii) Ground Floor, dwg no. L/02	C	20 June 2024
Stormwater Plans prepared by Prime Engineering Consultants
i) Cover Page, SW01, prepared by Prime Engineering Consultants	A	7 March 2023
ii) Specifications Sheet, SW02, Prime Engineering Consultants	A	7 March 2023
iii) Stormwater Plans Pool Level, SW03, Prime Engineering Consultants	A	7 March 2023
iv) Stormwater Plans Lower Ground Floor, SW04, Prime Engineering Consultants	A	7 March 2023
v) Stormwater Plan Ground Floor, SW05, Prime Engineering Consultants	A	7 March 2023
vi) Stormwater Plans Details Sheet 1, SW10, Prime Engineering Consultants	A	7 March 2023
Reports and Documents
BASIX Certificate No. A492407_02	-	19 June 2024
Clause 4.6 Floor Space Ratio Variation Statement prepared by Chapman Planning	-	20 June 2024

Orders:

20. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No DA‑2023/137 for alterations and additions to existing dwelling at 61 Neerim Road, Castle Cove, NSW 2069, known as Lot 236 in DP 30581, subject to conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 25 July 2024