Steve Wu Architects Pty Ltd v Willoughby City Council

[2022] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation:

Steve Wu Architects Pty Ltd v Willoughby City Council [2022] NSWLEC 1259

Hearing dates:

Conciliation conference held on 2 June 2022

Date of orders:

30 June 2022

Decision date:

30 June 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The application to modify Development Consent DA-2015/18 in the terms set out in Annexure “A” is approved.

(3) The terms of the consolidated Development Consent DA-2015/18, as modified are set out in in Annexure “B”.

Catchwords:

MODIFICATION APPLICATION – conditions of consent relating to architectural design – amenity and parking considerations – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, s 34

Willoughby Local Environmental Plan 2012

Texts Cited:

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Steve Wu Architects Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
E Whitney (Applicant)
S Puckeridge (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/96164

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Modification Application DA-2015/18/E (the MA) by the Willoughby City Council (hereafter the Council), which seeks amendment of conditions to an existing consent DA-2015/18 on Lot 1 in DP 5679, known as 231 Victoria Avenue, Chatswood (hereafter the site).

2. The MA was submitted to Council on 21 December 2021, and after internal review, remains undetermined. The original Development Application, DA-2015/18 (DA) was granted by Council on 18 May 2016.

3. The Class 1 appeal against the deemed refusal of the MA is made pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act), with an onsite view, by agreement of the parties. The conciliation was then held remotely by Microsoft Teams.

5. The Council agreed for the applicant to amend the plans and documents, that amend the MA, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court, after expert consultation and design amendments, which amend the relevant conditions of consent.

7. Pursuant to s 34(3) of the Court Act, I must 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. The parties' decision involves the Court exercising its power under s 4.55(1A) of the EPA Act, to modify DA-2015/18, as described in Annexure A, which changes the following conditions of consent in DA-2015/18:

1. Part A – condition 1, and

2. Part B – conditions 3, 15, 91 and 101.

8. The DA’s consolidated set of conditions of consent are described in Annexure B.

9. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(1A) of the EPA Act, as being described in the Willoughby Local Environmental Plan 2012 (WLEP). Also of relevance in the merit assessment is the Willoughby Development Control Plan 2006 (WDCP). The parties agree that the amendments to the conditions of consent address the relevant jurisdictional requirements.

10. The parties agree that the relevant requirements of the WLEP are and remain satisfied by the amendment of the DA’s conditions of consent. The relevant controls of the WDCP have been assessed and are satisfied. Council has undertaken the appropriate merit assessment of the amendments sought and agreed.

11. The requirements of s 4.55(1A)(a) of the EPA Act are agreed as being satisfied. The parties agree that the proposed changes to the development approved on the site will have minimal environmental impact.

12. The Council confirms that the notification of the MA under appeal was made with no submissions received, pursuant to the requirements of the WDCP, and that subs 4.55(1A)(c) and (d) of the EPA Act are considered satisfied.

13. The parties agree that the modification is substantially the same as previously approved under the DA. The parties confirm that the requirements of s 4.55(1A)(b) of the EPA Act are satisfied, in addition to the requirements of subs 4.55(3) and (4).

14. I am satisfied that based on the evidence before the Court that there are no jurisdictional impediments to the agreement seeking amendments to the DA, as described in Annexure A. This amended appeal for modification of DA-2015/18 satisfies the requirements of s 4.55(1A) of the EPA Act.

15. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

16. The Court notes:

1. That the Willoughby City Council as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of the development consent (DA-2015/18) granted on 19 August 2010 by DA07/0945/E.

2. That the applicant has uploaded the amended application on the NSW Planning Portal on 23 June 2022.

3. That the applicant has subsequently filed the amended application with the Court on 23 June 2022.

17. The Court orders that:

1. The appeal is upheld.

2. The application to modify Development Consent DA-2015/18 in the terms set out in Annexure “A” is approved.

3. The terms of the consolidated Development Consent DA-2015/18, as modified are set out in in Annexure “B”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A.pdf

Annexure B.pdf

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Decision last updated: 30 June 2022