Stefanovic v Willoughby City Council

[2024] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stefanovic v Willoughby City Council [2024] NSWLEC 1104

Hearing dates:

Conciliation Conference on 15 and 16 February 2024

Date of orders:

12 March 2024

Decision date:

12 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-2023/78 for demolition of the existing dwelling and construction of a three-storey dwelling, pool and associated site works on land at 44 Sunnyside Crescent, Castlecrag NSW 2068, known as Lot 175 in Deposited Plan 13097, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – construction new dwelling house, pool and landscaping – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 10.3

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

Environmental Planning and Assessment Regulation 2021, s 38, Sch 7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 6 s 2.6, Pt 2.3

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Rural Fires Act 1997, s 100Q

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

Texts Cited:

NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019

Category:

Principal judgment

Parties:

Jasmine Isabelle Stefanovic (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
R White (Applicant)
M Harker (Respondent)

Solicitors:
Project Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/215797

Publication restriction:

No

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 Willoughby City Council (the Council) of DA-2023/78 (the Development Application) for demolition of existing dwelling and construction of a new three-storey dwelling, pool and associated site works (the Proposed Development) on land at 44 Sunnyside Crescent, Castlecrag NSW 2068, known as Lot 175 in DP 13097 (the Site).

2. 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.

3. 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 the proposed development, as amended subject to conditions at Annexure A.

4. 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.

5. 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 to the Court on 16 February 2024. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

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

Environmental Planning and Assessment Act 1979

Section 4.14: Consultation and development consent—certain bush fire prone land

7. The site is mapped as bushfire prone land on a map certified under s 10.3(2) of the EPA Act. A Bushfire Protection Assessment Report prepared by Travers Bushfire & Ecology dated 15 March 2022 (Bushfire Report) is at tab 9 of the Class 1 Application filed on 6 July 2023. The Bushfire Report certifies that the proposed development conforms with the specifications and requirements of Planning for Bush Fire Protection 2019. The Court is satisfied that the development conforms with the parties agreed document.

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

8. The proposed development is BASIX affected for the purposes of the definition in the Dictionary to Sch 7 of the Environmental Planning and Assessment Regulation 2021.

9. The Amended Application has been accompanied by a BASIX Certificate No 0007090426-05 dated 16 February 2024, demonstrating compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and is considered satisfactory by the parties.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. As the site and adjoining lands have a long history of uninterrupted residential use and no activities have been conducted on or near the site that would likely create any potential for land contamination, the parties agree that the Amended Application is acceptable with regard to the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2: Vegetation in non-rural areas

11. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) applies to the site due to its location within the Willoughby Local Government Area and its land zoning as R2 Low Density Residential.

12. Section 2.6 of the SEPP Biodiversity and Conservation provides, “a person must not clear vegetation in a non-rural area of the State to which Part 2.3 applies without the authority conferred by a permit granted by the council under that Part.”

13. Part 2.3 of the SEPP Biodiversity and Conservation applies to vegetation that is declared by a development control plan to be vegetation to which Pt 2.3 applies.

14. If the clearing of such vegetation is proposed as part of a development, the approval of the consent authority is required prior to the commencement of works unless the vegetation is covered by the 10/50 code of practice enacted by s 100Q of the Rural Fires Act 1997. A 10/50 code of practice bushfire advice prepared by Travers Bushfire & Ecology, dated 28 April 2022 was filed with the Class 1 application (Bushfire Advice). In accordance with the Bushfire Advice, vegetation removal under the 10/50 code is permissible on the site, subject to conditions listed in the Bushfire Advice.

15. Accordingly, the Amended Application is considered by the parties to be satisfactory with regard to the relevant provisions of Ch 2 of the SEPP Biodiversity and Conservation.

Chapter 6: Water catchments

16. The subject site is located within the Sydney Harbour Catchment as shown on the Sydney Harbour Catchment Map.

17. The site is located north-east of Fig Tree Cove and south-east of Sailor’s Bay. It is located approximately 500m from both foreshores. Due to the distance between the site and the edge of the catchment, the Amended Application will have no measurable impact on the processes that determine the health of the catchment or its natural assets and cultural values. Therefore, the Amended Application is considered to be satisfactory with regard to the relevant provisions of Ch 6 of the SEPP Biodiversity and Conservation.

Willoughby Local Environmental Plan 2012

18. The subject land is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP) and dwelling houses are permissible with consent in the R2 zone.

19. The respective experts agree that the Amended Application is consistent with the objectives of the R2 Low Density Residential zone.

Clause 4.4: Floor Space Ratio

20. The site is mapped as having a maximum floor space ratio (FSR) of 0.45:1 pursuant to cl 4.4A of the WLEP. The site area is 559.1 sqm, which gives a permissible gross floor area of 252 sqm.

21. The amended architectural plans show a gross floor area of 276 sqm, being an exceedance of 24 sqm above the FSR control (or 9%).

22. Clause 4.6 of the WLEP permits development consent to be granted for development even though the development contravenes the FSR development standard. The development application has been accompanied by a written cl 4.6 statement from the Applicant.

23. The parties’ respective experts, Michael Neustein for the Applicant and Stuart McDonald for the Council, agree that the reasons set out in the cl 4.6 demonstrate:

1. that compliance with the development standard is unnecessary in the circumstances of the case; and

2. there are sufficient environmental planning grounds to justify contravening the development standard (in accordance with cl 4.6(3) of the WLEP).

24. The written cl 4.6 statement also identifies how the development is consistent with the objectives of the FSR development standard and the objectives for development within the R2 zone.

25. The Court is satisfied that the Applicant’s written request has adequately addressed the matters required to be satisfied by cl 4.6(3) and that the request to vary the FSR standard is upheld.

Clause 6.2: Earthworks

26. Clause 6.2(1) requires the consent authority to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

27. The Amended Application is supported by a Geotechnical Assessment Report prepared by JK Geotechnics (Revision 1) dated 8 June 2023 which addresses the relevant matters in cl 6.2.

28. The Amended Application proposes to demolish the existing residence and construct a residence that steps down on the slopping topography. It is anticipated that the excavation will extend to the south-western boundary, but will be set back about 4.5m and 1.0m from the north-eastern and south-eastern boundaries, respectively. The lowest level of the proposed excavation will be at approximately RL71.0m, and will then step up towards the south-eastern end of the site to RL77.9m. As a result, the anticipated maximum excavation is about 9m for the basement and ground floor levels and about 3.7m towards the south-eastern boundary for the first floor level.

29. The parties agree and the Court accepts that the proposed earthworks and excavations are satisfactory and acceptable with regard to the matters listed in cl 6.2(3) of the WLEP.

30. The parties Statement addressed planning controls concerning height of buildings, heritage, acid sulphate soils and urban heat and I am satisfied that no jurisdictional issues arise in respect to the Development Application as amended on the subject land.

Advertising and Notification

31. The DA was publicly notified to adjoining and surrounding properties between 30 March 2023 and 17 April 2023.

32. Four submissions were received in response to public notification. The issues raised included view loss, privacy, overshadowing, bulk and scale, geotechnical concerns and reflection from solar panels. The neighbours to the rear of the Site invited the Court and parties into their property to assess the perceived view loss and other issues of concern. The Court is satisfied that the Proposed Development as amended will not have a material impact on their view or privacy. All the submissions made in response to the notification have been reasonably considered by the parties and the Court.

Conclusion:

33. 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.

34. 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:

35. The Court notes that: 

1. The Respondent agrees to the Applicant amending Development Application No DA-2023/78 pursuant to section 38(1) of the Environmental Planning & Assessment Regulation 2021, to include the following plans and documents:

Plans	Rev	Date
Architectural Plans prepared by Kennon
i) Coversheet, Drawing No DA000	E	16 February 2024
ii) Site Description, Drawing No DA001	E	16 February 2024
iii) Site Context, Drawing No DA002	E	16 February 2024
iv) Survey Plan, Drawing No DA003	E	16 February 2024
v) Streetscape Analysis, Drawing No DA004	E	16 February 2024
vi) Demolition Plan, Drawing No DA010	E	16 February 2024
vii) FSR Calculations, Drawing No DA051	E	16 February 2024
viii) Proposed Site Plan, Drawing No DA090	E	16 February 2024
ix) Basement Plan, Drawing No DA099	E	16 February 2024
x) Ground Floor Plan, Drawing No DA100	E	16 February 2024
xi) First Floor Plan, Drawing No DA101	E	16 February 2024
xii) Second Floor Plan, Drawing No DA102	E	16 February 2024
xiii) Roof Plan, Drawing No DA103	E	16 February 2024
xiv) Proposed Driveway, Drawing No DA104	E	16 February 2024
xv) Landscape Plan, Drawing No DA105	E	16 February 2024
xvi) Elevations, Drawing No DA200	E	16 February 2024
xvii) Street Elevations, Drawing No DA201	E	16 February 2024
xviii) Sections, Drawing No DA250	E	16 February 2024
xix) Compliance Envelope, Drawing No DA260	E	16 February 2024
xx) Shadow Diagrams, Drawing No DA300	E	16 February 2024
xxi) Shadow Diagrams, Drawing No DA301	E	16 February 2024
xxii) Shadow Diagrams, Drawing No DA302	E	16 February 2024
xxiii) Materials, Drawing No DA400	E	16 February 2024
xxiv) Artists Impression from Neighbour, Drawing No DA402	E	16 February 2024
Reports and Documents	Rev	Date
BASIX Certificate No. 0007090426-05	16 February 2024
Clause 4.6 Floor Space Ratio Variation Statement prepared by City Planning Works	16 February 2024
Arboricultural Impact Assessment prepared by Creative Planning Solutions	A	7 July 2023
Site Survey prepared by Hill & Blume Consulting Surveyors	B	4 July 2023

Orders:

36. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No DA-2023/78, as amended, for demolition of the existing dwelling and construction of a three-storey dwelling, pool and associated site works on land at 44 Sunnyside Crescent, Castlecrag NSW 2068, known as Lot 175 in Deposited Plan 13097, subject to conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 12 March 2024