Northcote Development Company Pty Ltd v Willoughby City Council

[2023] NSWLEC 1784

Land and Environment Court

New South Wales

Medium Neutral Citation:

Northcote Development Company Pty Ltd v Willoughby City Council [2023] NSWLEC 1784

Hearing dates:

Conciliation conference on 7 November 2023 and 20 November 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification Application 2021/230/A, seeking to modify the built form and layout of the residential component of the shop top housing development approved by DA 2021/230, in relation to the property at 2-6 Northcote Street Naremburn (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 APPLICATION – shop top housing – presentation to road intersection - conciliation conference – agreement between the parties – orders

Legislation Cited:

Architects Act 2003, Sch 7

Environmental Planning and Assessment Act 1979, ss 4.5, 4.15, 4.24, 4.55, 8.9

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

Land and Environment Court Act 1979, ss 17, 34

State Environmental planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Willoughby Local Environmental Plan 2012, cll 4.4

Texts Cited:

NSW Planning and Environment, Apartment Design Guide, July 2015

Willoughby Community Participation Plan, November 2012

Category:

Principal judgment

Parties:

Northcote Development Company Pty Ltd (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):

2023/242545

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 2021/230/A (Modification) to the approved Stage 2 shop top housing granted in DA 2021/230 (DA).

2. The DA is located at 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 Modification seeks consent to modify an approved residential flat building by making minor modifications to the built form and layout to the DA to accommodate reconfigured corner apartment layouts and other minor changes.

4. 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).

5. The power and 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.

6. 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.

7. 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.

8. Under s 34(3)(a) 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 uphold the appeal and 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 had been satisfied, as set out below.

9. The parties agree that all Contentions in Council’s Statement of Facts and Contentions (SOFAC) filed 6 October 2023 have been resolved by:

1. Amended plans and documents, and

2. Agreed conditions of consent.

10. A comparison of the building as approved by the DA and as proposed by the Modification is shown in Figure 1 below:

Figure 1. Comparison of the building form as approved by the Consent (right) and as proposed to be amended by the Modification Application (left).

11. The DA was granted by Willoughby Local Planning Panel on 10 February 2023, and relates to Stage 2 of the concept development granted under DA/2013/147 (Concept Approval).

12. During the s 34(1) conciliation conference, Council approved amendments of the Modification, details of which are set out in par [24] below. The amended plans add windows to the north-western corner of the building and generally improve the aesthetics of the design.

13. The Council is satisfied that the amended plans result in a reduction of the impacts of the Modification and therefore in accordance with p 23 of Willoughby Community Participation Plan, November 2012 (WCPP) renotification of the amended Modification is not required.

14. The owner of the land is Abadeen Northcote Pty Ltd (Owner), and the Modification was lodged by the Applicant with the consent of the Owner pursuant to s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

15. The Modification was lodged with Council on 4 May 2023 pursuant to s 4.5(d) of the EPA Act.

16. The Modification in its original form was notified and advertised to adjoining and nearby landowners in accordance with the WCPP from 25 May 2023 to 16 June 2023. No submissions were received in response to the public notification.

17. In relation to the EPA Act:

1. The Modification was made in accordance with s 4.55(2) of the EPA Act, and s 4.24(3) confirms that the Concept Approval is also able to be modified. The Concept Approval is in the Court’s proceedings numbered 2023/242544. The Concept Approval is to be modified to keep consistency between it and the Modification. The Council is satisfied that provided the Concept Approval is modified prior to the Modification of the DA for Stage 2, then the determination of the Modification will be consistent with the Concept Approval.

2. Section 4.55(2)(a) – the DA as Modified is substantially the same for the following reasons:

1. Quantitatively, the Modification seeks:

1. A minor increase in the gross floor area of the DA from 5,117.1m² to 5,241.5m² (equivalent to a 2.4% increase) resulting in an increase in the Floor Space Ratio (FSR) from 2.4:1 to 2.46:1 which remains below the allowable FSR approved under the Concept Approval of 2.49:1, and the FSR standard in cl 4.4 of the Willoughby Local Environmental Plan 2012 (WLEP 2012) of 2.5:1; and

2. A minor amendment to the approved dwelling mix, resulting in a reduction of 1 x 1 bedroom unit and 2 x 2 bedroom units, and an increase of 3 x 3 bedroom units.

2. There are no changes to:

1. The total number of units;

2. The area of communal open space and deep soil;

3. The number of car parking spaces;

4. The height of the building; or

5. The total site area.

3. Qualitatively, the proposed modifications will continue to provide a four-storey shop-top housing development with only minor alterations being made to the building façade in response to the unit configurations, minor internal reconfigurations and minor amendments to the entry to Evans Plaza. The majority of the changes are confined to the southern corner of the building, adjacent to the Northcote Street and Evans Lane land boundaries, to provide greater amenity to the residential apartments and improve the aspect from the corner of the road.

4. Accordingly, the Modification will not change the DA ‘essentially’ or ‘materially’.

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

4. Section 4.55(2)(c): notification of the Modification is not required.

5. Section 4.55(2)(d): there were no submissions received after the Modification was notified and advertised, and therefore this subsection is not applicable.

6. Section 4.55(3): consideration of matters under s 4.15(1) of the EPA Act. In its assessment of the Modification, Council took into consideration the matters referred to in s 4.15(1) of the EPA Act, as are relevant and the reasons given by Council for granting the DA. Having regard to those matters, Council is satisfied that the Modification should be approved.

18. In relation to the EPA Regulation:

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

2. A State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Design Quality Principles Statement dated 15 November 2023 by Ben Pomroy of rothelowman, a qualified designer, being a registered architect in accordance with Sch 7 of the Architects Act 2003, 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; and

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.

19. In relation to WLEP 2012, the parties have taken into consideration the jurisdictional and merit assessment of WLEP 2012 and are not aware of any unresolved jurisdictional requirements which apply to this Modification.

20. 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 Plan Approval and raise no further issues in relation to the Modification.

21. 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.

22. 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.

23. 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.

24. 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 application for an amendment to Modification Application DA/2021/230/A to rely upon the documents and plans specified in the table below, and as referred to in Condition 1 of the Conditions of Consent in Annexure A:

Type	Plan No.	Revision/ Issue No	Plan Date (as Amended)	Prepared by
Cover Page	TP00.00	J	27.10.2023	rothelowman
Site Plan	TP00.02	K	27.10.2023	rothelowman
Demolition Plan	TP00.03	F	27.10.2023	rothelowman
Unit Compliance Summary	TP00.20	F	27.10.2023	rothelowman
Basement 01	TP01.01	P	27.10.2023	rothelowman
Talus Reserve Level	TP01.02	R	27.10.2023	rothelowman
Evans Lane Level	TP01.03	R	27.10.2023	rothelowman
Northcote Street Level	TP01.04	K	27.10.2023	rothelowman
Level 1	TP01.05	L	27.10.2023	rothelowman
Level 2	TP01.06	K	27.10.2023	rothelowman
Level 3	TP01.07	D	27.10.2023	rothelowman
Level 4	TP01.08	F	27.10.2023	rothelowman
Level 5	TP01.09	J	27.10.2023	rothelowman
Level 6	TP01.10	D	27.10.2023	rothelowman
Roof	TP01.11	K	27.10.2023	rothelowman
Evans Lane Elevation	TP02.01	K	27.10.2023	rothelowman
Northcote Street Elevation	TP02.02	K	27.10.2023	rothelowman
8-14 Northcote Street Elevation	TP02.03	H	27.10.2023	rothelowman
Talus Reserve Elevation	TP02.04	J	27.10.2023	rothelowman
External Finishes	TP02.05	E	27.10.2023	rothelowman
Section 01	TP03.01	G	27.10.2023	rothelowman
Section 02	TP03.02	H	27.10.2023	rothelowman
Section 04	TP03.04	J	27.10.2023	rothelowman
Section 05	TP03.05	J	27.10.2023	rothelowman
Section 06	TP03.06	D	27.10.2023	rothelowman
Section 07	TP03.07	C	27.10.2023	rothelowman
Section 08	TP03.08	D	27.10.2023	rothelowman
Adaptable Plans	TP06.30	E	27.10.2023	rothelowman
Adaptable Plans	TP06.31	D	27.10.2023	rothelowman
Facilities Evans Lane Plan	TP06.50	E	27.10.2023	rothelowman
Planting Schedule and Palette	03	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Talus Reserve Level	04	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Evan Lane Street Level	05	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Northcote Street Level	06	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Level 1	07	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Level 2	08	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Level 3	09	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Level 4-6	10	E	6/11/2023	Landfx Landscape Architecture
Landscape Plan - Roof Top	11	E	6/11/2023	Landfx Landscape Architecture
Planting on Structure - Roof Top	12	E	6/11/2023	Landfx Landscape Architecture
Planting Plan - Roof Top	13	E	6/11/2023	Landfx Landscape Architecture

Together with the application form and any other supporting documentation submitted as part of the application, except for:

(a) any modifications which are “Exempt Development” as defined under S.4.1(1) of the Environmental Planning and Assessment Act 1979;

(b)   otherwise provided by the conditions of this consent.

(Reason: Information and ensure compliance)

25. The Court orders:

1. The appeal is upheld.

2. Modification Application 2021/230/A, seeking to modify the built form and layout of the residential component of the shop top housing development approved by DA 2021/230, in relation to the property at 2-6 Northcote Street Naremburn (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 (462740, pdf)

**********

Decision last updated: 22 December 2023