Middle Cove Investments (No.1) Pty Ltd v Willoughby City Council

[2025] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:

Middle Cove Investments (No.1) Pty Ltd v Willoughby City Council [2025] NSWLEC 1267

Hearing dates:

Conciliation conference on 7-8 April 2025

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on amended plans and other documents at Annexure A, subject to the Applicant paying the costs of the Council pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, thrown away as a result of the amendment of the application for development consent as agreed or as assessed.

(2) The appeal is upheld.

(3) Development application DA-2024/55 for demolition of existing structures and construction of a mixed-use building including a single storey basement carpark, ground floor retail tenancies and residential apartments, is determined by the grant of consent, subject to the conditions of consent in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION: mixed use development in E3 Productivity Support zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, Pt 2, Sch 1

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 2.6, 6.6, 6.7, 6.9

State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120

Willoughby Local Environmental Plan 2012, cll 4.3, 44, 4.4A, 6.1, 6.2, 6.3, 6.5, 6.7, 14, Sch 1

Texts Cited:

Willoughby Development Control Plan 2023

NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)

Category:

Principal judgment

Parties:

Middle Cove Investments (No.1) Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Apex Planning and Environment Law (Applicant)

File Number(s):

2024/182138

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: A commercial premises currently stands close to the intersection of Eastern Valley Way and McClelland Street in Willoughby on a site known as 217 Eastern Valley Way.

2. The existing development on the site is proposed to be demolished to permit a mixed use development comprising basement carparking, a ground floor retail tenancy with two levels of apartments over.

3. To this end, development application No. DA-2024/55 was lodged by the Applicant in these proceedings, Middle Cove Investments (No.1) Pty Ltd, with Willoughby City Council (the Council) on 14 March 2024.

4. As the DA was otherwise undetermined, Middle Cove appealed the deemed refusal on 16 May 2024 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The matter was initially listed before me for hearing on 7-8 April 2025. However, at the onsite view, parties advised the Court that all contentions initially in dispute were resolved as an outcome of joint expert conferencing.

6. The parties sought an adjournment to settle agreed conditions of consent, and subsequently sought for the Court to reallocate the matter for conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act), at which I presided. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 8 April 2025.

Willoughby Local Environmental Plan 2012

7. The site is located within an area identified in the Willoughby Local Environmental Plan 2012 (WLEP) as E3 Productivity Support zone, where residential accommodation is prohibited by the terms of item 4 of the Land Use Table.

8. However, as the site is identified ‘Area 3’ on the Special Provisions Map at cl 14(1) of sch 1 of the WLEP, shop top housing is permitted with development consent.

9. The objectives of development in the E3 zone are as follows:

•  To provide a range of facilities and services, light industries, warehouses and offices.

•  To provide for land uses that are compatible with, but do not compete with, land uses in surrounding local and commercial centres.

•  To maintain the economic viability of local and commercial centres by limiting certain retail and commercial activity.

•  To provide for land uses that meet the needs of the community, businesses and industries but that are not suited to locations in other employment zones.

•  To provide opportunities for new and emerging light industries.

•  To enable other land uses that provide facilities and services to meet the day to day needs of workers, to sell goods of a large size, weight or quantity or to sell goods manufactured on-site.

•  To accommodate businesses and other uses of land if the access requirements of, and the traffic generated by, the uses do not interfere with the safety and efficiency of the road network.

The height standard is exceeded

10. A height standard of 11m applies to the site, according to the relevant map at cl 4.3(2) of the WLEP. As the maximum height of the proposal is 13.501m, the height standard is exceeded and Middle Cove relies on a written request authored by Urbanism Planning and Development in accordance with cl 4.6 of the WLEP dated 8 April 2025 (Height Request).

11. The Height Request asserts the proposed development is consistent with the objectives of the height standard at cl 4.3 of the WLEP notwithstanding the non-compliance. Those relevant objectives are as follows:

(a)  to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape,

(b)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(c)  to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores,

(d)  to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development,

(e)  to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping,

(f)  to use maximum height limits to assist in responding to the current and desired future character of the locality,

…

(h)  to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.

12. In respect of that consistency with the objectives, I accept that the site is within a commercial pocket with existing development at a scale of one and two storeys with which the proposal is largely consistent, notwithstanding additional height that complies at the front of the site. I also accept the additional height does not result in the unreasonable loss of privacy, solar access nor visual intrusion, or disruption to views when the placement of window openings, screening to terraces and an assessment is made of shadow cast by complying development on properties to the south when compared with the proposal.

13. The planning experts agree that the neighbouring dwelling to the rear maintains uninterrupted solar access to 1pm at midwinter, and limited overshadowing at 2pm. At 3pm, the neighbouring dwelling is subject to overshadowing by the proposed development however compliance with the minimum solar access provisions under the Willoughby Development Control Plan 2023 (WDCP) is maintained.

14. I also accept that achieving the landscape controls required by the WDCP and Apartment Design Guide (ADG) may contribute to the exceedance to the rear of the site.

15. As such, I am satisfied that compliance with the height standard is unreasonable or unnecessary because the proposal is consistent with the objectives of the height standard.

16. Next, the Height Request advances the following environmental planning grounds it asserts are sufficient to justify the contravention of the height standard:

“▪ The development does not result in adverse environmental effects on the use or enjoyment of adjoining properties and the public domain.

▪ The development maintains an appropriate visual relationship between new development and the existing character of the locality.

▪ The development provides an appropriate correlation between the size of the site and the extent of the development on that site.

▪ The development facilitates design excellence by ensuring the extent of building height in building envelopes leaves generous space for the articulation and modulation of design.

▪ The development ensures that the height of building on land in Zone E3 Productivity Support generally reflects Council’s desired building envelopes.

▪ The development provides opportunities for employment.

▪ The development provides a development that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

▪ The proposed works will provide for improved amenity for the occupants, which promotes good design which is consistent with the Objective 1.3 (g) & (h) of the EPA Act which is a suitable environmental planning ground which justifies the flexible application of the development standard.”

17. While a number of the grounds listed above are not more than statements promoting the development as a whole, I accept that the proposal generally reflects the building envelope envisaged by the controls for the site – particularly at the front of the site, and in terms of floor space ratio, and that the proposed development is compatible with the desired character, style, orientation and pattern of development envisaged in the zone, including streetscapes and landscaped areas. I also accept that the provision of ground floor retail, desired by active street frontage provisions at cl 6.7 of the WLEP, requires greater than minimum ceiling heights according to Figure 4C.1 of the ADG, that contributes to the height exceedance to the rear of the site where the topography slopes.

18. As such, I am satisfied the planning grounds are sufficient to justify the contravention of the height standard.

19. The site is located in an area identified on the relevant map at cl 6.1(2) of the WLEP with Class 5 Acid Sulfate Soils, however the site is not within 500m of another class of soil and is of such an elevation that I am satisfied the watertable will not be affected and so an acid sulfate soils management plan is not required.

20. Earthworks are proposed, shown on architectural drawing DA400 to include 516.23 m³ of excavation. The development application is supported by a Geotechnical Report prepared by Precision Engineering Group dated 6 February 2023 (Exhibit A, Tab U), on the basis of four boreholes at a maximum depth of 1.6m. The Geotechnical Report provides recommendations on excavation methods, vibration velocities and soil retention. Middle Cove also rely upon amended Stormwater Plans, prepared by Inhouse dated 11 November 2024 (Exhibit O) that depict the collection and storage of stormwater on the site, albeit premised on the disposal of stormwater via an easement yet to be obtained from the downstream property owner of Lot B DP 432459, otherwise known as 221 Eastern Valley Way. I am of the view that the matters for consideration at cl 6.2(3) of the WLEP are adequately addressed in the documents on which Middle Cove relies.

21. An Arboricultural Impact Assessment prepared by Aborlogix dated 28 November 2023 (AIA) assesses 4 trees that are potentially impacted by the proposed development, including a street tree at the frontage of the site. Amended Landscape Plans prepared by Sussan Zindo, dated 9 October 2024 (Exhibit F) identify the location and species of three canopy trees, ground covers and other landscape planting in planter beds on the site that I accept accommodates sufficient tree canopy, open space and deep soil zones to achieve urban cooling benefits in accordance with cl 6.3 of the WLEP, and that the proposed location of air conditioning condenser units, shown on Fig 2 of the Acoustic Design Report – Mechanical Plant dated September 2024 (Exhibit E), will not release heat in the direction of private open space or the public domain. A statement prepared by Mr Liskowski dated 8 November 2024 describes considerations given to the performance of the proposal in terms of its sustainability against the provisions of the WDCP, Part J Building Sustainability, and shading devices are proposed by way of a condition of consent to ensure the building is designed to achieve high passive thermal performance.

22. The planning experts initially shared a concern that the proposal will not provide an active frontage in terms sought by cl 6.7 of the WLEP because, in effect, the floor-to-floor heights proposed do not support retail activity on the ground floor. In answer to the concern, the experts recommend a detailed section be provided to otherwise demonstrate that proposed heights do support such activity. The parties advise that the amended architectural plans (Exhibit B) demonstrate adequate floor-to-floor levels to support ground floor retail activity.

The design of residential apartment development

23. As the proposed development is residential apartment development, the Court is required by s 147 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.

24. I am somewhat assisted in so doing by a statement dated 8 December 2023 that attests Mr Laurie Liskowski (Arch Reg No. 4224) directed the design of the proposal (December Statement). However, contrary to the provisions of s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the December Statement prepared by Mr Liskowski did not also address the objectives in Parts 3 and 4 of the Apartment Design Guide. Rather, Mr Liskowski asserts that the proposal addresses Part 2 of State Environmental Planning Policy No.65 – Design Quality of Residential Flat Development. This may be a reference to Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). If so, it appears relevant that Part 2 was repealed 17 July 2015 when the Design Quality Principles were constituted as Sch 1 of SEPP 65.

25. These obvious errors were subsequently addressed by the filing of an amended design statement dated 6th April 2025 that erroneously stated the relevant design principles derive from the ADG, while it is well known to all architects in NSW that the relevant principles are found in Sch 9 of the Housing SEPP.

26. A further design statement authored by Mr Liskowski dated 8 April 2025 was in a conforming format.

27. On the basis of the statement, I am satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. As the proposed development proposes excavation and other works within 2m of electricity distribution poles, the development was referred to the electricity supply authority Ausgrid, in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP). Ausgrid provided its concurrence, noting it does not object to the proposal, subject to certain standards being adopted in undertaking the proposed works.

29. The site has a frontage to Eastern Valley Way which is a Classified Road. As there is no other practical or safe vehicular access to the land, such access is to be from Eastern Valley Way. A Traffic and Parking Assessment prepared by Wongala Consulting Engineers 10 November 2023 (Exhibit A, Tab Y) assesses traffic generated by the proposed development based on an earlier proposal, however the traffic experts do not contest the number or allocation of parking spaces now proposed. An amended assessment against the provisions of s 2.119 of the Infrastructure SEPP dated 7 April 2025 (Exhibit M, Annexure C) satisfies me that the safety, efficiency and ongoing of operation of Eastern Valley Way will not be adversely affected as a result of the vehicular access, or the nature, volume of frequency of vehicles accessing the site because the crossover is designed to accommodate B99 and B85 vehicles to pass simultaneously, negligible traffic generated on the site allowing forward movements on entry and exit, and signage to preclude the entry of trucks.

30. Relatedly, I note Transport for NSW does not object to the proposal and issued general terms of approval on 31 May 2024 that are incorporated into the agreed conditions of consent.

31. Accordingly, I am satisfied that the operation of Eastern Valley Way will not be adversely affected by the development as a result of vehicular access, emissions or dust, or the nature, volume or frequency of vehicles using that road, in accordance with s 2.119 of the Infrastructure SEPP.

32. A Road Traffic Noise & Vibration Assessment dated November 2023 (Exhibit A, Tab O) provides recommendations in Section 6.1-6.5 that, if complied with, will result in no exceedances of the internal noise levels set out at s 2.120(3) of the Infrastructure SEPP. An Acoustic Design Report, prepared by Noise and Sound Services, dated September 2024 (Acoustic Report) (Exhibit E) also proposes design mitigation measures to address the potential impact of noise from other sources such as plant and equipment on neighbouring properties. I note the Acoustic Report concludes that acceptable levels will be achieved, subject to placement of the condenser units in the basement noted at [21]. On this basis I am satisfied that appropriate measures of a kind at s 2.120(3) of the Infrastructure SEPP will be taken so that certain levels are not exceeded.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

33. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by the AIA at [21]. Trees on adjoining land are to be retained, however the parties agree the removal of the street tree located in the road reserve improves road safety. The agreed conditions of consent provide for protection of those trees proposed to be retained. I note s 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

34. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map.

35. As such, Chapter 6 of the Biodiversity SEPP applies.

36. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

37. It is relevant to state here, as at [20], Middle Cove seeks consent for development that requires the obtaining of an easement for drainage over 221 Eastern Valley Way.

38. The Stormwater experts agree that the sewer pipe has been pegged out, and it has been demonstrated that it will be possible to locate the stormwater pipe adjacent to the sewer pipe, and that a longitudinal section through the proposed drainage easement will provide sufficient falls to the kerb and gutter, at an acceptable velocity and peak flow rate.

39. When the detailed assessment of Tree 3, set out in the Arborists Assessment at Table 3, is read in combination with the swale design on Drawing C8 (Exhibit O), and with the levels at the boundary of the subject site, and those of the kerb and gutter, I accept that the stormwater concept design shown in Stormwater Plans is capable of disposing stormwater from the site, subject to the obtaining of an easement of a kind that is the subject of the deferred commencement condition agreed between the parties. A design certificate prepared by Inhouse Consulting Engineers dated 8 April states that Condition A.2 that details the design requirements of the Inter-allotment Drainage Easement can be achieved.

33. Furthermore, on the basis of the filtration devices located within the OSD depicted on the Stormwater Plans, I am satisfied that there is appropriate treatment and control of stormwater run-off proposed. Stormwater run-off generated on the site will be directed to a subsurface OSD tank and storm filter chamber to the west of the site before being directed to the public drainage system in Cawarrah Road to the north of the site. For these reasons, the effect of the proposal on the quality of water entering Sydney Harbour will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised.

34. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

35. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

43. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). The development application is supported by a Detailed Site Investigation prepared by SESL dated October 2024 (DSI) (Exhibit C). I note the DSI records the finding of bonded asbestos fragment within the soils located at the base of the driveway adjacent to the unknown storage tank at the rear of the neighbouring mechanic workshop. The DSI concludes that the site will be deemed suitable to proceed with the proposed development, subject to removal of asbestos from the site in accordance with the Remediation Action Plan of the same author dated February 2024 (Exhibit D). On this basis, I am satisfied the site can be made suitable for the purpose for which development is proposed to be carried out, after remediation is completed.

State Environmental Planning Policy (Sustainable Buildings) 2022

44. The application is accompanied by a BASIX certificate (Cert No. 1730785M_04 prepared by Eco Certificates Pty Ltd dated 4 April 2025) (Exhibit H) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

45. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

46. That said, a letter authored by the architect at [24], Mr Liskowski, and dated 8 December 2023, (Exhibit A, Tab R) states that “no Embodied Emission Materials are used in the development of this property”. While such a statement would appear to describe development that fully offsets the emissions embodied in the harvest or extraction, manufacturing, distribution and finishing of all materials used in the proposal, I understand this is not what is intended by the statement, and Middle Cove rely instead on the quantification of embodied emissions found in the BASIX Certificate.

Conclusion

47. 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.

48. 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.

49. The Court notes that:

1. Willoughby City Council as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA-2024/55, in accordance with the amended plans documents at Annexure A.

2. The Amended plans and other documents listed in Annexure A were filed with the Court on 7 and 8 April 2025.

Orders

50. The Court orders that:

1. The Applicant is granted leave to rely on amended plans and other documents at Annexure A, subject to the Applicant paying the costs of the Council pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, thrown away as a result of the amendment of the application for development consent as agreed or as assessed.

2. The appeal is upheld.

3. Development application DA-2024/55 for demolition of existing structures and construction of a mixed-use building including a single storey basement carpark, ground floor retail tenancies and residential apartments, is determined by the grant of consent, subject to the conditions of consent in Annexure ‘B’.

T Horton

Commissioner of the Court

Annexure A (119936, pdf)

Annexure B (409408, pdf)

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Decision last updated: 29 April 2025