Rahmani v Willoughby City Council

[2024] NSWLEC 1114

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Rahmani v Willoughby City Council [2024] NSWLEC 1114

Hearing dates:

Conciliation Conference on 19 and 26 February 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA 2023/27 for demolition of existing dwelling and associated structures and construction of new dwelling house, with basement, swimming pool and associated landscape works at 36 Headland Road, Castle Cove, NSW 2069 known as Lot 16 in DP 30284, subject to conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – construction new dwelling house basement parking and pool – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

Willoughby Local Environmental Plan 2012 cll 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2

Texts Cited:

Willoughby Community Participation Plan

Willoughby Development Control Plan 2006

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

Esan Rahmani (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
B Dyer (Solicitor) (Respondent)

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

File Number(s):

2023/238827

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Willoughby City Council (the Council) of DA-2023/27 (the Development Application) for the demolition of existing dwelling and construction of a new dwelling with excavation for new basement, swimming pool and landscaping (the Proposed Development) at 36 Headland Road, Castle Cove, NSW 2069 known as Lot 16 in DP 30284 (the Site).

2. The Site consists of an exposed rock face and retaining wall fronting Headland Road and rises steeply to a height of approximately 8.5m between Headland Road and the building footprint at the top of the property which backs on to a shared right of way which connects to Pindari Avenue: Statement Of Facts And Contentions (SOFAC), 22 August 2023.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference.

4. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to Proposed Development, as amended, on the land with conditions at Annexure A.

5. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided on 26 February 2023. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s SOFAC.

Jurisdiction:

7. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

8. The Development Application was submitted with the consent in writing of the owner of the subject land, Laurence Lin.

State / Regional Environmental Planning Instruments

9. I have considered the jurisdictional issues raised by the following Environmental Planning Instruments as set out in the Statement and am satisfied that no jurisdictional impediments arise preventing the Court from allowing the appeal and granting consent to the Development Application, as amended.

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

3. State Environmental Planning Policy (Sustainable Buildings) 2022

4. Willoughby Local Environmental Plan 2012 (WLEP)

10. The Proposed Development is permissible with consent in the C4 Environmental Living Zone that applies to the land under the WLEP.

11. Height (Clause 4.3): The Development Application complies with the height development standard of 8.5 m in cl 4.3 of WLEP.

12. Floor Space Ratio (Clauses 4.4, 4.4A): The floor space ratio (FSR) control in WLEP for the Site is 0.35:1 pursuant to cl 4.4A(4). The FSR of the development is 0.37:1. The exceedance of the FSR control is 16.35 m² (5.86%).

13. The amended application is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the WLEP, although it does not comply with cll 4.4 and 4.4A.

14. The Development Application was lodged prior to 1 November 2023, prior to the amendment to cl 4.6 effected by the NSW Department of Planning after a review of the Standard Instrument Local Environmental Plan provisions. Consequently, the application must be assessed under the former provisions of cl 4.6.

15. The cl 4.6 written request that supports the Development Application explains that the non-compliance of the FSR does not result in a development that is incompatible with the character of the surrounding area, nor result in adverse amenity to adjoining properties. This is due to substantial compliance with setback controls under the Willoughby Development Control Plan 2006 (noting that the Development Application was lodged prior to the commencement of the Willoughby Development Control Plan 2023 (WDCP 2023) which increased side setback controls), compliance with the landscaped area controls, the extent of the variation to the standard is reasonably minor and does not result in an uncharacteristic bulk/scale.

16. In considering the Applicant’s cl 4.6 written request that is supported by the Council, the Court is satisfied that the written request seeking variation of the FSR development standard sufficiently addresses the requirements of cl 4.6 of the WLEP. The proposed building form responds appropriately to the slope of the land, the constraints of the Site, maximises landscaped open space, and reflects the (pre-WDCP 2023) future desired character of the streetscape. The Proposed Development is generally consistent with the objectives of the zone (C4), in addition to the FSR (cl 4.4) standard objectives.

17. For the above reasons set out in the Statement, the Applicant’s written request to vary the FSR standard in cl 4.4 of the WLEP, prepared by Chapman Planning Pty Ltd dated 20 February 2024 and supported by the Council, is upheld by the Court.

18. Acid Sulfate Soils (Clause 6.1): Although the land is within Class 5 of the Acid Sulphate Soils Map and is within 500 m of land in Class 2 to the north, the basement excavation does not involve excavation below 5m Australian Height Datum. Therefore, cl 6.1(3) is not triggered and an acid sulfate soils management plan is not required before consent can be granted.

19. Earthworks (Clause 6.2): Clause 6.2 applies and requires consideration of certain matters before consent can be granted. The parties set out in the Statement that the development has been the subject of a detailed geotechnical investigation report and I am satisfied that the requirements of cl 6.2 have been taken into consideration in the implementation of the Proposed Development, as amended.

Notification and community participation:

20. The original Development Application was notified and advertised from 22 February 2023 to 8 March 2023 in accordance with the Willoughby Community Participation Plan. Council received one submission during the advertising period. Two neighbours also attended the Site visit. It was apparent that they had already communicated with the owner, Mr Lin, who was present on Site and their concerns largely met. It was explained to one neighbour that conditions of consent stipulated by Council that bind the owner and his builders deal with the issues concerning him such as the construction process and construction vehicles on the road. I am satisfied that the resident objectors were accorded procedural fairness.

Conclusion:

21. For these reasons, based on the evidence before me, and my observations and oral submissions made on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

22. 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. 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.

Notations:

23. 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 No. DA 2023/27, in accordance with the following documents which were filed with the Court on 29 February 2024:

1. Revision D Architectural Plans, prepared by Peak Architects and dated 20 February 2024;

2. Clause 4.6 for Floor Space Ratio, prepared by Chapman Planning Pty Ltd and dated 20 February 2024;

3. BASIX Certificate No. 1335937S_03, prepared by Sustainable Thermal Solutions and dated 24 February 2024;

4. Revision 4 Stormwater plans, prepared by SYJ Consulting Engineers and dated 07 February 2024;

5. Stormwater engineering letter, prepared by SYJ Consulting Engineers and dated 05 February 2024.

Orders:

24. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA 2023/27 for demolition of existing dwelling and associated structures and construction of new dwelling house, with basement, swimming pool and associated landscape works at 36 Headland Road, Castle Cove, NSW 2069 known as Lot 16 in DP 30284, subject to conditions in Annexure ‘A’.

……………………….

L Byrne

Acting Commissioner of the Court

Amended Annexure A (299386, pdf)

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Amendments

20 March 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 20 March 2024