Ranguis v Willoughby City Council

[2025] NSWLEC 1554

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ranguis v Willoughby City Council [2025] NSWLEC 1554

Hearing dates:

Conciliation Conference 25 July 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA-2024/297 for alterations and first floor addition to an existing dwelling, demolition of existing garage, new carport, swimming pool, landscaping and associated works on land identified as Lot 9 in Deposited Plan 11712, known as 97 Fourth Avenue, Willoughby East, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

APPEAL — residential development application — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.11

Land and Environment Court Act 1979 (NSW), ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.1, 6.2

Texts Cited:

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

Sebastian Ranguis (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
L Ryan (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Applicant)
Willoughby City Council (Respondent)

File Number(s):

2025/133551

Publication restriction:

Nil

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA-2024/297) (Development Application) seeking consent for alterations and a first floor addition to an existing dwelling, demolition of existing garage, construction of new carport, swimming pool, landscaping and associated works on land identified as Lot 9 in Deposited Plan 11712, known as 97 Fourth Avenue, Willoughby East (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Background

3. The Development Application was lodged with the respondent on 10 December 2024.

4. The proceedings were commenced on 8 April 2025 against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act. The Development Application was refused by the respondent on the same date.

5. On 2 May 2025, the matter was set down for a conciliation conference and hearing pursuant to s 34AA of the LEC Act on 8 and 9 September 2025.

6. In the intervening period, the parties have reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application, as amended, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

7. The agreed amendments to the Development Application include:

1. changing the orientation and reducing the height of the roof joining the old and new portion of the house;

2. changing the roof of the carport to a flat roof and reducing the height of the carport;

3. increasing the landscaped area by reduction of the paved area in the rear of the property; and

4. amending the civil plans to modify the driveway and provide for minor cut and fill requirements,

(Amended Development Application).

8. 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.

9. 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.

Public submissions

10. The Development Application was notified to adjoining landowners and occupiers in accordance with the Willoughby Development Control Plan 2023 (WDCP) between 9 and 21 January 2025. Two submissions were received in response to the notification, raising concerns regarding the use, accessibility and safety of the shared driveway between the Subject Land and 95 Fourth Avenue Willoughby, and amenity issues concerning car noise and light spill.

11. I am satisfied that the written submissions received have been taken into consideration in the assessment and determination of the Amended Development Application and agreed conditions of consent.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision 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). I form this state of satisfaction for the reasons that follow.

Owner’s consent

13. The applicant is the registered proprietor of the Subject Land,

State Environmental Planning Policy (Resilience and Hazards) 2021

14. I accept the parties’ submission that the requirements of cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) have been considered, and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events. The proposal includes the demolition of the existing asbestos fibro garage at the rear of the site, however, pursuant to conditions 1, 24, 25, 41 and 61 of the Agreed Conditions, I am satisfied that the Subject Land will be suitable for the proposed development in accordance with cl 4.6 of the RH SEPP before it is used for that development.

State Environmental Planning Policy (Sustainable Buildings) 2022

15. BASIX Certificate No. A1767422_04 dated 1 July 2025 is included in the Amended Development Application pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Subject Land as it is located within the Sydney Harbour Catchment. The parties agree that the Amended Development Application is consistent with the requirements for developments within the Sydney Harbour Catchment, to the extent they are relevant, and will not result in any impact on such catchments (see pp 4-7 of the Statement of Environmental Effects prepared by Kim Burrell dated October 2024 (SEE)).

Willoughby Local Environmental Plan 2012

17. The Site is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To accommodate development that is compatible with the scale and character of the surrounding residential development.

• To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

• To retain the heritage values of particular localities and places.

• To encourage self sufficiency with respect to energy and food supply.

18. Pursuant to cl 4.3 of the WLEP (height of buildings), the Subject Land is subject to a maximum building height of 8m. The parties agree that the Amended Development Application complies with this standard.

19. Pursuant to cl 4.4 of the WLEP (floor space ratio), the Subject Land is subject to a maximum floor space ratio of 0.4:1. The parties agree that the Amended Development Application complies with this standard.

20. The parties agree that cl 5.10 (heritage conservation) of the WLEP applies to the Amended Development Application as the Subject Land is located within the Willoughby Park Heritage Conservation Area. The parties agree that the Amended Development Application is capable of being approved having regard to the WLEP and WDCP, particularly as a result of the amendments to the roof form and carport structure. The parties further agree, and I accept that, the proposed development will not have an unacceptable effect on the heritage significance of the Willoughby Park Heritage Conservation Area.

21. Pursuant to cl 6.1 of the WLEP, the parties agree that the Subject Land is mapped as “Class 5” on the Acid Sulfate Soils Map. The parties further agree that cl 6.1(3) is not enlivened as the proposed works will not lower the water table (see p 13 of the SEE).

22. The parties agree that cl 6.2 of the WLEP (relating to earthworks) applies to the Amended Development Application as earthworks are proposed. The parties further agree that the matters listed in cl 6.2(3) have been considered (see p 13 of the SEE).

Willoughby Development Control Plan 2023

23. I note that the parties have considered the WDCP in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

Remaining matters in s 4.15(1) of the EPA Act

24. The parties agree that the matters set out in s 4.15(1)(b), (c), and (e) of the EPA Act have been considered, the Subject Land is suitable for the proposed development, and the Amended Development Application is in the public interest (see pp 21-22 of the SEE).

Conclusion

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

26. 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.

27. The Court notes that the respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending Development Application No DA-2024/297 in accordance with the following further amended plans and documents:

Plan	Drawn by	Dated
DA01 Site Plan – Rev G	Hampton Architecture	July 2025
DA03 Proposed Ground Floor Plan– Rev G	Hampton Architecture	July 2025
DA04 Proposed First Floor Plan – Rev G	Hampton Architecture	July 2025
DA05 Proposed Elevations – Rev G	Hampton Architecture	July 2025
DA06 Proposed Sections - Rev G	Hampton Architecture	July 2025
LP-01 Landscape Plan – Front – Rev D	Goodmanors	10 June 2025
LP-02 Landscape Plan – Rear – Rev D	Goodmanors	10 June 2025
DA-01 DA Plan – Front – Rev B	Goodmanors	10 June 2025
DA-02 DA Plan – Rear – Rev B	Goodmanors	10 June 2025
DA16 Sediment & Erosion Control Plan – Rev C	Hampton Architecture	March 2025
DA02 Site Stormwater Drainage Plan – Rev D	NB Consulting Engineers	17 March 2025
DA03 Stormwater Drainage Plan – Rev A	NB Consulting Engineers	6 August 2024

Additional Information

BASIX Certificate A1767422_04	Mr Adam Hampton	1 July 2025
Arboricultural Impact Appraisal, Root Investigation and Method Statement	Ezigrow	13 October 2024
Waste Management Plan	Applicant	undated

28. The above documents were provided to the Court on 25 July 2025.

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA-2024/297 for alterations and first floor addition to an existing dwelling, demolition of existing garage, new carport, swimming pool, landscaping and associated works on land identified as Lot 9 in Deposited Plan 11712, known as 97 Fourth Avenue, Willoughby East, is determined by the grant of consent subject to the conditions at Annexure A.

N Targett

Commissioner of the Court

Annexure A (342 KB, pdf)

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Decision last updated: 01 August 2025