Momentum Project Group Pty Ltd v Willoughby City Council

[2022] NSWLEC 1561

Land and Environment Court

New South Wales

Medium Neutral Citation:

Momentum Project Group Pty Ltd v Willoughby City Council [2022] NSWLEC 1561

Hearing dates:

Conciliation conference on 9 and 19 September 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The applicants written request, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012, seeking a variation to the Development Standards for Height of Buildings, is upheld.

(2) The applicants written request, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012, seeking a variation to the Development Standards for Floor Space Ratio, is upheld.

(3) The Appeal is upheld.

(4) The Development Application DA-2021/309, for the demolition of all existing structures and the construction of a shop-top housing development consisting of commercial premises at the ground floor, residential apartments above and basement car parking on land known as 83-87 Edinburgh Road Castlecrag, legally described as Lots 4, 5, 6 in DP 15437, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – Shop Top Housing – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.15, 8.7, 8.11
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2

Category:

Principal judgment

Parties:

Momentum Project Group Pty Ltd (Applicant)
Willoughby Council (Respondent)

Representation:

Counsel:
S Gadiel (Solicitor) (Applicant)
JP Merlino (Solicitor) (Respondent)

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

File Number(s):

2022/189031

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Momentum Project Group Pty Ltd (Applicant) against the deemed refusal of Development Application No. DA-2021/309. The Development Application was lodged with the Respondent, Willoughby City Council, on 22 October 2021.

2. The Development Application seeks consent for the demolition of all existing structures and the construction of a shop-top housing development consisting of commercial premises at the ground floor, residential apartments above and basement car parking. The land that is the subject of the proceedings comprises three allotments and is located at 83-87 Edinburgh Road Castlecrag, known as Lots 4, 5, 6 in DP 15437.

3. After the filing of the appeal, the Respondent determined the proposal by the granting of Development Consent. The determination of the Development Application does not affect the continuation of the appeal pursuant to s 8.11(3) of the EPA Act. As a result, the Court is still required to determine the outcome of the Appeal even though the parties have reached an agreement.

4. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 9 and 19 September 2022. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. The Development Application includes an exceedance of the Development Standard contained within cl 4.3(2) of the Willoughby Local Environmental Plan 2012 (WLEP 2012) relating to the Height of Buildings (HoB). As a result, the application includes a written request prepared by Gyde Consulting (dated August 2022) seeking to vary a Development Standard pursuant to cl 4.6 of the WLEP 2012. I must be satisfied that the Court, in exercising its power, could uphold the written request.

8. The parties agree that the written request, in respect to HoB, can be upheld. The written request identifies the breach, deals with the “unreasonable or unnecessary” approach to varying Development Standards and demonstrates that there are sufficient environmental planning grounds to vary the Development Standard. The written request considers planning strategies for the locality, the objectives for the Development Standard, the Zone Objectives as well as the broader benefits to the public.

9. The written request identifies that the breach to the HoB requirement is a result of the lift overrun protruding above the Height limit. The written request notes that the variation is not visible in terms of the streetscape and nor will it have an impact on surrounding properties. The written request also sets out, and justifies, the environmental planning grounds up which the written request relies. As a result of the above outcomes, I am satisfied that upholding the written request is a decision that the Court could have made.

10. The Development Application includes an exceedance of the Development Standard contained within cl 4.4(2) of the WLEP 2012 relating to the Floor Space Ratio (FSR). As a result, the application includes a written request prepared by Gyde Consulting (dated February 2022) seeking to vary a Development Standard pursuant to cl 4.6 of the WLEP 2012.

11. The parties agree that the written request, in respect to FSR, can be upheld. The written request identifies the variation to the FSR Development Standard as 0.28:1, the maximum currently being 1.3:1 and the proposed development seeking 1.58:1. The written request reviews the objectives of both the Development Standard as well as the zone objectives. The request also identifies background work on the future character of the local centre and development outcomes for the site recently undertaken through a strategic planning process.

12. The request identifies the breach, deals with the “unreasonable or unnecessary” approach to varying Development Standards and demonstrates that there are sufficient environmental planning grounds to vary the Development Standard. As a result of the above outcomes, and on review of the written request, I am satisfied that upholding the written request is a decision that the Court could have made.

13. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the WLEP 2012 the land is zoned ‘B1 Neighbourhood Centre’ (B1) and the use is permissible with Development Consent. In determining the Development Application, I have had regard to the objectives of the zone.

2. Clause 6.1 of the WLEP 2012 requires consideration of various matters prior to the granting of development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. The land is identified as ‘Class 5’ Acid Sulfate Soils. The Statement of Environmental Effects, prepared by GYDE Consulting, identifies that the site is not within 500 metres of any Class 1-4 sulfate soil. I am satisfied that due consideration has been given to the requirements of cl 6.1 and these requirements have been met.

3. Clause 6.2 of the WLEP 2012, requires consideration of various matters relating to earthworks prior to the granting of Development Consent. I am satisfied based on the material with the application, including a geotechnical report and the proposed conditions of Development Consent in Annexure A, that the matters listed in cl 6.2 have been adequately considered.

4. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021(Transport SEPP). Edinburgh Road is not a classified road as discussed in the Statement of Environmental Effects (prepared by Gyde Consulting) and the Traffic and Parking Assessment (prepared by Transport and Traffic Planning Associates). I am satisfied that the required considerations have been undertaken in respect to the Transport SEPP.

6. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties agree that the land requires remediation and the required works are ensured through conditions of consent. These works are also set out on page 56 of the detailed Site Investigation Report prepared by Aargus dated 18 February 2022. These works will ensure the land will be suitable for the purpose for which the development is proposed to be carried out.

14. 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 Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

15. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The applicants written request, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012, seeking a variation to the Development Standards for Height of Buildings, is upheld.

2. The applicants written request, pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012, seeking a variation to the Development Standards for Floor Space Ratio, is upheld

3. The Appeal is upheld.

4. The Development Application DA-2021/309, for the demolition of all existing structures and the construction of a shop-top housing development consisting of commercial premises at the ground floor, residential apartments above and basement car parking on land known as 83-87 Edinburgh Road Castlecrag, legally described as Lots 4, 5, 6 in DP 15437, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

…………………..

S Harding AC

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 14 October 2022