Smith v Willoughby City Council

[2025] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Willoughby City Council [2025] NSWLEC 1184

Hearing dates:

Conciliation conference on 10 March 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. DA-2020/302 for demolition of existing improvements and the construction of a new dual occupancy development and associated works at 64 Millwood Avenue, Chatwood West (Lot 96 DP 654801), is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy and elevated driveway – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34AA, 34

Roads Act 1993, s 138

Environmental Planning and Assessment Regulation 2000, cl 27

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, s 2.6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

State Environmental Planning Policy Amendment (Water Catchments) 2022

Willoughby Local Environmental Plan 2012 (Amendment No 34)

Willoughby Local Environmental Plan 2012, cll 1.8A, 2.7, 4.1, 4.3, 4.4A, 6.1, 6.2, 6.10

Category:

Principal judgment

Parties:

Richard Alan Smith (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2024/95807

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the actual refusal of Development Application No DA-2020/302 for demolition of existing improvements and the construction of a new dual occupancy development, elevated driveway and associated works at 64 Millwood Avenue, Chatwood West (Lot 96 DP 654801)) (the site) by Willoughby City Council.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference which I presided over was held on 10 March 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 one that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EP&A Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement together with the documents referred to therein, the Amended Class 1 Application and its attachments, the joint reports filed in the proceedings, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EP&A Act.

5. The Council as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg). The plans and documents comprising the amended application were submitted to the Court on 10 March 2025 and are listed under condition 1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons.

Willoughby Local Environmental Plan 2012

7. The subject development application was submitted prior to the making of Willoughby Local Environmental Plan 2012 (Amendment No 34) on 30 June 2023. Therefore, by virtue of cl 1.8A the prior version of Willoughby Local Environmental Plan 2012 (WLEP 2012) applies to the subject development application and is therefore considered below.

8. The development works are for the purposes of a dual occupancy development which is a permissible use in the C4 Environmental Living zone in which the site is located, pursuant to WLEP 2012.

9. The development is consistent with the objectives of the C4 Environmental Living zone including:

• 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.

10. The development is consistent with cl 2.7 of WLEP 2012 as development consent is sought for the proposed demolition.

11. Clause 4.1 provides a minimum lot size for dual occupancy development on the subject site being 740m². The subject lot complies with this requirement having an area of 962.3m².

12. Notwithstanding that the subject application does not seek consent for subdivision, cl 4.1 provides minimum requirements (including minimum lot size of 350m², maximum one dwelling per lot, maximum floor space ratio (FSR) of 0.4:1 etc) for the subdivision of a dual occupancy development. The proposal complies with these requirements and therefore would not give rise to a potential future non-compliance.

13. The proposed development complies with the maximum height of building control which applies to the site in accordance with cl 4.3 of WLEP 2012 being below the maximum height of 8.5m as illustrated on the architectural plans.

14. The proposed development complies with the maximum FSR control which applies to the site in accordance with cl 4.4A(4) of WLEP 2012 for lots between 901 – 1000m² in area having an FSR of 0.2996:1 where a maximum of 0.3:1 applies.

15. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and accordingly no further assessment is required in accordance with cl 6.1 of WLEP 2012.

16. Clause 6.2 Earthworks requires that certain matters are considered prior to the granting of consent in relation to earthworks. On the basis of the parties’ agreement, the geotechnical joint expert report and relevant conditions of consent, I am satisfied that consideration has been given to the relevant matters.

17. Clause 6.10 specifies a minimum lot size of 700m² for dual occupancy (attached) development in the C4 zone. The subject land complies with this requirement having an area of 962.3m².

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and the parties agree that the site has a long history of residential use and therefore contamination is unlikely. No further investigation in accordance with the RH SEPP is therefore required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact has been found to be acceptable subject to replacement planting as required by the plans, and the agreed conditions of consent.

20. The subject development application was lodged on 23 November 2020, that is prior to the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 which included a savings provision. Accordingly, Ch 6 of the BC SEPP, as it now relates to water catchments does not apply to the subject proposal.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

…

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

22. The proposal has frontage to Millwood Avenue which is a classified road and access is provided from the classified road via an existing shared driveway extension. However, given the site circumstances, I am satisfied that no other practical and safe vehicular access is available. Further, on the basis of the parties’ agreement, amended plans, supplementary advice provided by Transport and Traffic Planning Associates (dated 10 March 2025) which is agreed by the parties’, I am satisfied that the proposal will not adversely affect the safety, efficiency and ongoing operation of Millwood Avenue. Further, I am satisfied that the development is appropriately located and designed to ameliorate potential traffic noise and / or vehicle emissions.

Other Matters

23. Owner’s consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EP&A Reg with the Applicant being the landowner.

24. Works are also proposed in the road reserve of Millwood Avenue which is a classified road and which require the concurrence of TfNSW under s 138 of the Roads Act 1993. TfNSW has advised by letter dated 10 September 2024 that it would provide concurrence subject to Council’s approval and relevant requirements being included in the development consent. These matters have been included at condition 3 of the conditions of consent at Annexure A.

25. In accordance with cl 27 of the EP&A Reg, a BASIX Certificate has been submitted (Certificate No.637925M_04) as required.

26. The development application, in its original form, was notified between 1 December 2020 and 12 January 2021. Seven submissions were received in response to the notification objecting to the proposal and raising concerns in respect of:

• Privacy and overlooking

• Site overdevelopment

• Solar access and overshadowing

• Tree removal

• Extensive excavation

• Lack of concurrence from TfNSW for works proposed on Roads and Maritime Services (RMS) land

• Traffic impacts during construction

• Minimum frontage requirements for dual occupancy

• Insufficient stormwater management plans

• Insufficient arborist report

• Siting

• Bulk and scale; and

• Car parking and access.

27. On 23 January 2024, the Applicant was granted leave to rely on amended plans which were intended to address issues raised by the consent authority and in the submissions. The amended plans were further notified to objectors on 4 February 2025. Five additional submissions were received.

28. At the commencement of the conciliation conference six neighbours made oral submission to the Court in respect of the application raising issues generally consistent with those outlined above.

Conclusion

29. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

30. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

Orders

31. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA-2020/302 for demolition of existing improvements and the construction of a new dual occupancy development and associated works at 64 Millwood Avenue, Chatwood West (Lot 96 DP 654801), is determined by the grant of consent subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A

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Decision last updated: 27 March 2025