Ochudzawa v Willoughby City Council

[2024] NSWLEC 1094

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ochudzawa v Willoughby City Council [2024] NSWLEC 1094

Hearing dates:

Conciliation conference held 5 and 6 February 2024

Date of orders:

06 March 2024

Decision date:

06 March 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-2023/75 and rely upon the amended plans referred to in condition 2 at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA-2023/75 (as amended) for demolition of existing structures and construction of a new dwelling house, car parking, swimming pool, tree removal and replanting, and associated works at 31 Willis Road, Castle Cove, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – single dwelling house – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

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

Willoughby Local Environmental Plan 2012, cll 2.3, 2.7, 5.10, 6.1, 6.2

Category:

Principal judgment

Parties:

Simon Ochudzawa (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/208085

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Simon Ochudzawa (the Applicant), against the deemed refusal of Development Application DA-2023/75 (the DA) by Willoughby City Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of existing dwelling and construction of new elevated three-storey dwelling house, car parking, swimming pool, tree removal and replanting, and associated works, at 31 Willis Road, Castle Cove (the site).

2. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 and 6 February 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the DA has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which include inconsistency with the relevant objectives for development within the C4 Environmental Living Zone as set out in the Willoughby Local Environmental Plan 2012 (WLEP), exceedance of the building height and floor space ratio (FSR) development standards set out in the WLEP, inconsistency with the desired future character of Castle Cove, excessive cut and fill, excessive bulk and scale, inappropriate landscape character, solar access and daylight access impacts, and view sharing impacts amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site and its context thereby resolving each of the Respondent's contentions. In summary, these amendments remove the proposed upper-most storey and relocate proposed bedrooms to a lower ground floor. Additionally, the building footprint has been brought into consistency with the relevant development controls, increasing the northern boundary setback from 1.5m (as proposed) to 7m (as amended), increasing the southern boundary setback from 1.5m (as proposed) to 3m (as amended), along with the removal of the proposed front fence, retention of additional trees and introduction of additional landscaping in the front and side setbacks.

6. Under s 34(3) 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 4.16 of the EPA Act to grant consent to the amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 4 April and 5 May 2023. Forty-three submissions were received by the Respondent including concerns for non-compliance with development standards for building height, FSR and landscape area, and development controls for setbacks, building envelope, fence heights, pool height, cut and fill depths. Concerns also included incorrect calculation of gross floor area and FSR, inconsistency with land use zone objectives, impacts upon the streetscape, inappropriate character, tree loss, along with a number of deficiencies and omissions from the DA documentation.

10. Additionally, at the commencement of the conciliation conference on site, the Court benefited from oral submissions made by a number of objectors, including residents of an immediately adjacent neighbouring property. These objectors reinforced issues noted within the written submissions and focused on direct impacts upon residential amenity such as reduced solar access, reduced daylight and associated impacts of building bulk and scale resulting from its proximity to the common boundary.

11. Additional concerns raised during oral submissions at the site view emphasised inconsistencies between the DA and relevant objectives and development standards of the statutory framework, along with concerns for the proposed demolition of the existing dwelling on the site, which although having no formal heritage status, is an example of the ‘Sydney School’ architectural style and of the work of a well-known Sydney architect.

12. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent now resolve the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

13. The parties agree, and I am satisfied, that the WLEP is the relevant local environmental planning instrument. The site is zoned C4 Environmental Living and the proposed development - characterised as single dwelling house - is permissible with consent.

14. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the C4 Environmental Living zone objectives, which include:

● To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

● To ensure that residential development does not have an adverse effect on those values.

● To ensure that development preserves and enhances the natural features and bushland within the immediate locality (including natural vegetation, geological features, drainage patterns, the water table and the relationship of development to the natural topography) and does not increase bush fire hazard potential.

● To maintain the scale, character and streetscape of individual localities.

● To retain and enhance residential amenity, including views, solar access, aural and visual privacy, foreshore setting, landscape quality and heritage value.

15. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures on the site is permissible with consent.

16. The parties agree, and I am satisfied, that all principal development standards of the WLEP - including height of building, FSR and landscaped area - have been met by the amended DA.

17. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a heritage conservation area. The site is however in close proximity to a listed heritage item being Innisfallen Castle.

18. The Applicant has provided a letter, prepared by heritage consultants Heritage 21 and dated 20 November 2023, that addresses impacts the DA would have on the heritage item. The parties agree, and I am satisfied, that the amended DA creates no unreasonable detrimental impacts upon this nearby heritage item.

19. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area. Given the site is not within 500m proximity of any Class 1, 2, 3 or 4 land and is unlikely to lower the water table below 1m Australian Height Datum, the matters set out in cl 6.1 of the WLEP have been appropriately addressed.

20. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. Agreed conditions of consent are imposed to address the matters set out at cl 6.2(3).

21. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

22. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) is an additional relevant environmental planning instrument.

23. Pursuant to Ch 2 of SEPP Biodiversity and Conservation, the amended DA seeks consent for the removal of vegetation in a non-rural area, specifically a number of existing trees. The Applicant has provided an Arboricultural Impact Assessment Report prepared by Seasoned Tree Consulting, initially dated 7 December 2022 with addenda dated 14 September 2023 and 30 January 2024. I am satisfied the amended DA conforms with the relevant provisions of Ch 2 of SEPP Biodiversity and Conservation.

24. Pursuant to Ch 6 of SEPP Biodiversity and Conservation, the site is situated within the Sydney Harbour Catchment, a regulated catchment as defined in SEPP Biodiversity and Conservation. Additionally, the site is situated within the Foreshores and Waterways Area. The parties agree, and I am satisfied, that the specific matters for consideration raised by SEPP Biodiversity and Conservation have been addressed given that the amended DA does not intensify the existing land use, does not carry out works within the portion of the site closest to the waterways, does not impede public access to any waterbody, and does not adversely impact on any downstream local government area.

25. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index — BASIX) 2004. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate number 1361063S_02, dated 8 February 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

26. Pursuant to s 4.14 of the EPA Act, the amended DA proposes development on bushfire prone land and is situated within the flame zone. The NSW Rural Fire Service (RFS) has been consulted and made recommendations in its letter dated 12 April 2023. The parties agree, and I am satisfied, that the RFS has been consulted as required under s 4.14(1A). Agreed conditions of deferred commencement (condition 1 at Annexure A) require an updated Bushfire Hazard Assessment Report to be prepared identifying whether any further bushfire mitigation measures are to be reflected in the amended DA plans and documents.

27. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

28. The Court notes that:

1. Pursuant to s 38 of the EPA Reg, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 14 February 2024.

Orders

29. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-2023/75 and rely upon the amended plans referred to in condition 2 at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA-2023/75 (as amended) for demolition of existing structures and construction of a new dwelling house, car parking, swimming pool, tree removal and replanting, and associated works at 31 Willis Road, Castle Cove, subject to the conditions of consent at Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (337885, pdf)

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Decision last updated: 06 March 2024