Northcote Development Company Pty Limited v Willoughby City Council

[2023] NSWLEC 1770

Land and Environment Court

New South Wales

Medium Neutral Citation:

Northcote Development Company Pty Limited v Willoughby City Council [2023] NSWLEC 1770

Hearing dates:

Conciliation conference on 7 November 2023 and 20 November 2023

Date of orders:

19 December 2023

Decision date:

19 December 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2)   Modification Application DA 2013/147/G, seeking to modify the stage 2 building envelope and layout approved by DA 2013/147, in relation to the property at 2-14 Northcote Street, Naremburn (SP 93253, Lot 1 in DP 746018; Lots 1 and 2 in DP 801523; and Lots 2 and 3 in Section 29 of DP 4241) is approved subject to the consolidated conditions in Annexure A.   

Catchwords:

MODIFICATION – Concept Plan approval – shop top housing - conciliation conference – agreement between the parties – orders

Legislation Cited:

Architects Regulation 2017, ss 4, 5

Environmental Planning and Assessment Act 1979, ss 4.5, 4.24, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, ss 23, 37, 100, 102, 113

Land and Environment Court Act 1979, ss 17, 34

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002)

State Environmental planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Willoughby Local Environmental Plan 2012

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide

Willoughby Community Participation Plan November 2013

Category:

Principal judgment

Parties:

Northcote Development Company Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
T Sattler (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/242544

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by the Applicant filed 31 July 2023 against Willoughby City Council’s (Council) deemed refusal pursuant to s. 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) of the Applicant’s Modification Application DA 2021/147/G (Modification).

2. The Modification seeks consent to modify the staged concept design approved under DA/2013/147/G for the demolition of existing structures and construction of mixed use residential, commercial and childcare centre development (Concept Approval) at 2-14 Northcote Street, Naremburn, being the whole of the land in:

1. Stage 1 – 8-14 Northcote Street Naremburn – SP 93253 (formerly Lot 4, Section 29 in Deposited Plan 4241 and Lot 2 in Deposited Plan 110095); and

2. Stage 2 – 2-6 Northcote Street Naremburn (Lot 1 in Deposited Plan 746018, Lots 1 and 2 in Deposited Plan 801523, together with Lots 2 and 3, Section 29 in Deposited Plan 4241).

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The power or functions to be exercised by the Court in determining the matter are s 34(3) of the LEC Act and s 4.55(2) of the EPA Act.

5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 7 November 2023, and 20 November 2023. I presided over the conciliation conference.

6. 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. This decision involved the Court upholding the appeal and granting approval to the Modification subject to conditions.

7. Under s 34(3)(a) and (b) of the LEC 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 4.55(2) of the EPA Act to approve the Modification subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, as set out below.

8. The Council filed its Statement of Facts and Contentions on 6 October 2023 (SOFAC). The parties agree that all contentions raised in the SOFAC have been resolved by the preparation of the:

1. amended plans and documents; and

2. agreed conditions of consent.

9. The Concept Approval included a detailed design approval for Stage 1 of the Development. Consent was granted to a detailed design for Stage 2 of the development under DA/2021/230 (Stage 2 Consent). Stage 1 has been constructed.

10. The Modification has been prepared to accompany modification application DA/2021/230/A, which has been lodged with the Council seeking modifications to the built form and layout approved by the Stage 2 Consent.

11. To allow for the modifications to be made to the Stage 2 Consent, this Modification seeks an amendment to the approved plans in the Concept Approval, by way of the amendment of condition 2 of the Concept Approval is to read as follows:

“2.   Approved Plan/Details – Stage 2

The Stage 2 development approval is limited to the proposed land uses, building envelope and general arrangement of those land uses within the Stage 2 development, being basement level car parking, business/retail and residential development, in accordance with the following plans:

As modified by (DA-2013/147/G)

Type	Plan No.	Revision/ Issue No	Plan Date (as Amended)	Prepared by
Basement 01	TP10.01	B	07.11.23	rothelowman
Talus Reserve Level	TP10.02	B	07.11.23	rothelowman
Evans Lane Level	TP10.03	B	07.11.23	rothelowman
Northcote Street Level	TP10.04	C	07.11.23	rothelowman
Level 1	TP10.05	C	07.11.23	rothelowman
Level 2	TP10.06	C	07.11.23	rothelowman
Level 3	TP10.07	A	07.11.23	rothelowman
Level 4-6	TP10.08	C	07.11.23	rothelowman
Roof	TP10.09	C	07.11.23	rothelowman
Elevations	TP10.10	C	07.11.23	rothelowman
Section	TP10.11	C	07.11.23	rothelowman

and as amended by the conditions of this consent.

In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail.

(Reason: Information and ensure compliance)”

12. The Concept Approval was granted consent by the Sydney North Planning Panel on 9 October 2013.

13. The owner of the Land is Abadeen Northcote Pty Ltd (Owner), and the Modification was made by Northcote Development Company Pty Ltd with the consent of the Owner in accordance pursuant to s 23(1)(b) of the Environment and Planning Assessment Regulation2021 (EPA Regulation).

14. The Modification was lodged with the Council on 4 May 2023, in accordance with s 4.5(d) of the EPA Act.

15. The Modification Application in its original form was advertised and notified to adjoining and nearby landowners in accordance with the Willoughby Community Participation Plan November 2019 (WCPP) from 25 May 2023 to 16 June 2023. No submissions were received in response to the public notification.

16. The Council has approved the amended plans of the Modification pursuant to s 37(1) of the EPA Regulation, and the amended plans form part of the s 34 Agreement dated 30 November 2023. The amended plans:

1. add windows to the north western corner of the building; and

2. generally improve the aesthetics of the design.

17. A comparison of the building as approved by the Stage 2 Concept Approval, and as proposed to be modified by the Modification, is shown below at Figure 1 below.

Figure 1. Comparison of the building form as approved by the Stage 2 Approval (right) and as proposed to be amended by the Modification (left) demonstrating that the building design on the corner of Northcote Street and Evans Lane retains its function as a ‘gateway identifier’, as required by condition 3(d) of the Concept Approval.

18. The Council is satisfied that the amended plans result in a reduction of the impacts of the development, and therefore in accordance with p 23 of the WCPP renotification of the amended application is not required.

19. Pursuant to the EPA Act:

1. Section 4.24(3) of the EPA Act confirms that the Concept Approval is able to be modified.

2. In accordance with s 4.55(2)(a) the parties agree, and the Court can be satisfied, that the development as modified is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified for the following reasons:

1. Quantitatively, the proposed modification seeks a minor amendment of the approved building envelope, in which Block A extends closer to the corner of Evans Lane and Northcote Street, including:

1. a minor reduction between 2 – 5m of the setback distances to the respective streets (p 16 of the SOFAC); and

2. a minor increase in the setback of the Concept Approval to Stage 2, from 0m to 2m.

2. No changes are proposed to:

1. the Concept Approval as it relates to Stage 1;

2. the proposed land uses;

3. the vehicle access, servicing and waste collection arrangements;

4. the basement car park;

5. the provision or location of communal open space;

6. the height of the building; or

7. the total site area.

3. The gross floor area is consistent with the approved gross floor area as per Condition No. 3(a) of the Concept Approval.

4. Qualitatively, the proposed modifications will continue to provide a mixed use development comprising business/retail premises and shop-top housing within two stages and at the same building scale of four to nine storeys.

5. Accordingly, the proposed modifications will not change the approved design ‘essentially’ or ‘materially’. The development as modified will be substantially the same as the development for which consent was originally granted under the Concept Approval.

3. In accordance with s 4.55(2)(b) – consultation with Minister, public authority or approval body: the Modification does not seek the amendment of any conditions imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body. Further, the Modification does not otherwise require the concurrence or approval of a Minister, public authority or approval body, and therefore consultation under s 4.55(2)(b) was not required.

4. Section 4.55(2)(c) – notification of the application – as set out above.

5. Section 4 .55(2)(d) – consideration of public submissions: not required.

6. Section 4.55(3) – consideration of matters under s 4.15(1) and the reasons for approval:

1. In its assessment of the Modification Application, the Council has taken into consideration:

1. the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application; and

2. the reasons given by the Sydney North Planning Panel for the granting of the Concept Approval, including the conditions of that Concept Approval.

2. Having regard to those matters, the Council is satisfied that the Modification Application can be approved.

20. In relation to the EPA Regulation, the Modification is accompanied by:

1. a BASIX certificate No. 1160420M_03 dated 18 April 2023, in accordance with s 100(3) of the EPA Regulation, being a new BASIX certificate as the BASIX certificate which accompanied the Modification is no longer consistent with the development; and

2. a SEPP 65 Design Quality Principles Statement dated 15 November 2023 by Ben Pomroy of rothelowman, a qualified designer, being a registered architect in accordance with ss 4 and 5 of the Architects Regulation 2017 and prepared in accordance with s 102(2)(c) of the EPA Regulation, which:

1. verified that the qualified designer directed the design of the Modification;

2. notes that the qualified designer did not direct the design of the development for which the original consent was granted;

3. explains how the development addresses the design quality principles, the objectives in the Apartment Design Guide, and verifies that the Modification does not either diminish or detract from the design quality of the original development or compromise the original development.

21. In relation to Willoughby Local Environmental Plan 2012 (WLEP 2012), the parties have taken into consideration the jurisdictional and merit assessment of WLEP 2012, and are not aware of any jurisdictional requirements which apply to this Modification.

22. The State Environmental Planning Policies in relation to:

1. State Environmental Planning Policy (Transport and Infrastructure) 2021; and

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

were considered in the original assessment for the Concept Approval, and raise no further issues in relation to the Modification.

23. I am not required, and I have not considered, the merit issues of the Modification. I am advised by the parties that they are satisfied that the merit issues have been considered by the Council and are all resolved.

24. For the reasons set out above, 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)(a) of the LEC Act.

25. 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)(b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. The Court notes that Willoughby City Council, as the relevant consent authority, pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, has approved the Applicant amending Modification Application 2013/1447/G to rely upon amended documents and plans as specified in the table below, and as referred to in Condition (1) of the Conditions of Consent in Annexure A :

2.   Approved Plan/Details – Stage 2

The Stage 2 development approval is limited to the proposed land uses, building envelope and general arrangement of those land uses within the Stage 2 development, being basement level car parking, business/retail and residential development, in accordance with the following plans:

As modified by (DA-2013/147/G)

Type	Plan No.	Revision/ Issue No	Plan Date (as Amended)	Prepared by
Basement 01	TP10.01	B	07.11.23	rothelowman
Talus Reserve Level	TP10.02	B	07.11.23	rothelowman
Evans Lane Level	TP10.03	B	07.11.23	rothelowman
Northcote Street Level	TP10.04	C	07.11.23	rothelowman
Level 1	TP10.05	C	07.11.23	rothelowman
Level 2	TP10.06	C	07.11.23	rothelowman
Level 3	TP10.07	A	07.11.23	rothelowman
Level 4-6	TP10.08	C	07.11.23	rothelowman
Roof	TP10.09	C	07.11.23	rothelowman
Elevations	TP10.10	C	07.11.23	rothelowman
Section	TP10.11	C	07.11.23	rothelowman

27. The Court orders:

1. The appeal is upheld.

2. Modification Application DA 2013/147/G, seeking to modify the stage 2 building envelope and layout approved by DA 2013/147, in relation to the property at 2-14 Northcote Street Naremburn (SP 93253, Lot 1 in DP 746018; Lots 1 and 2 in DP 801523; and Lots 2 and 3 in Section 29 of DP 4241) is approved subject to the consolidated conditions in Annexure A.   

………………………

M Peatman

Acting Commissioner of the Court

Annexure A (400523, pdf)

**********

Decision last updated: 19 December 2023