Toppings Pty Ltd v Willoughby City Council

[2024] NSWLEC 1843

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Toppings Pty Ltd v Willoughby City Council [2024] NSWLEC 1843

Hearing dates:

Conciliation conference on 11 July 2024

Date of orders:

24 December 2024

Decision date:

24 December 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent DA-2017/467 is modified in the terms set out in Annexure A.

(3)   Development Consent DA-2017/467 (as modified) is subject to the conditions set out in Annexure B.

Catchwords:

APPEAL – modification application – increase in floor to floor ceiling height – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113

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

State Environmental Planning Policy (Housing) 2021, Sch 7A s 8

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 4.16, 4.17,6.2, 6.10

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Willoughby Community Participation Plan 2021

Category:

Principal judgment

Parties:

Toppings Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
R O'Gorman-Hughes (Applicant)
B Gallifuoco (Respondent)

Solicitors:
Project Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2023/445946

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 4 November 2019, the Willoughby City Council granted development consent to Development Application No DA-2017/467 (original Development Consent) for the demolition of existing structures and construction of a new residential flat building with basement carparking and landscaping at 211 Victoria Avenue, Chatswood NSW 2067 (Site).

2. On 6 July 2023, the Applicant lodged Modification Application No DA-2017/467/A for approval to modify the original consent to change the internal layouts of units, and to increase the approved floor to floor ceiling heights to satisfy the Apartment Design Guide (ADG) and enhance buildability and associated works (Modification Application).

3. The Council has determined to refuse the Modification Application and the Applicant 8 December 2023 has appealed against that decision under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) .

4. On 11 July 2024, the Court arranged a conciliation conference between the parties, and I was the presiding commissioner. During the conciliation conference the Applicant provided the Council with an amended application which resolved the contentions. On 4 December 2024, the Council, as the relevant consent authority, approved, pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the Applicant relying on the amended application.

5. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 19 December 2024 (Agreement).

6. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions.

7. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act and s 4.55(2) EPA Act to dispose of these proceedings and grant the orders sought. In that regard, I note the following:

Owner’s consent

8. The Modification Application was made with the consent of the owners of the Site (see Class 1 supporting materials).

9. The proposed development is confined to the Site.

Notification

10. The Modification Application, as amended, was notified by the Council from 24 July 2023 until 7 August 2023. No submissions were received.

Environmental Planning and Assessment Act 1979

11. The Modification Application, as amended is made pursuant to s 4.55(2) of the EPA Act.

12. The parties submit that the development to which the Modification Application, as amended relates is substantially the same development for which the original Development Consent was granted, for the following reasons:

Quantitively:

1. The Modification Application, as amended, amongst other things:

• does not seek to modify the number of apartments;

• does not seek any material modification to the soft landscaped area;

• incorporates a number of amendments to the development mandated by the original Development Consent (Condition 2 Development Consent);

• proposes a minor increase to the Floor Space Ratio (FSR) from 0.99:1 to 1.02:01;

• proposes a minor increase to the height of building by 0.1 metres, yet the building continues to present as 4 storeys.

Qualitatively:

2. The nature of the approved land use for a residential flat building, comprising seven units with basement car parking is not altered in the Modification Application, as amended.

• The approved height, bulk and scale of the building remains within the ambit of the original Development Consent and the plans as approved. Albeit, the additional height is necessary due to the height of the drainage easement pit, which forced the ground floor level to be raised by 0.34 metres to satisfy various engineering design requirements. The remaining increase in height of 0.3 metres was an increase in floor thicknesses of 50 millimetres (at Levels 1, 2 and the roof) and 150 millimetres (at Level 3) which was related to structural issues and containment of services.

• The physical appearance of the development remains generally consistent with the original Development Consent and the Modification Application, as amended.

• The approved residential amenity outcomes of the development in terms of solar access are not compromised by the proposed modifications, affording and maintaining appropriate visual privacy between properties.

13. Based on the qualitative and quantitative aspects outlined above, I am satisfied that the development proposed in the Modification Application, as amended, is substantially the same as that approved by the original Development Consent. The requirement in s 4.55(2)(a) of the EPA Act is satisfied.

14. The parties agree and I accept that the requirements relating to notification and the consideration of submissions received, as identified in s 4.55(2)(c) and (d) of the EPA Act, have been complied with.

15. The parties agree that in determining the Modification Application, as amended, the Council has considered the matters referred to in s 4.15(1) of the EPA Act, as are of relevance to the development the subject of the Modification Application, as amended. The Council has also taken into consideration the reasons given for the grant of the original Development Consent. The requirements of s 4.55(3) of the EPA Act are thereby satisfied.

Planning Controls

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65)

16. The Modification Application, as amended remains subject to the provisions of SEPP 65 (Sch 7A, s 8 State Environmental Planning Policy (Housing) 2021).

17. In accordance with s 102 EPA Regulation 2021, the Modification Application is accompanied by a detailed design verification statement prepared by RFA Architects (Registered Architect: Brian Hollis) (see Class 1 supporting materials). The statement contains an analysis of the development, as modified, which confirms compliance with the requirements of SEPP 65 and the ADG.

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

18. The Modification Application, as amended, is subject to the BASIX SEPP. In accordance with s 100(3) EPA Regulation 2021, an amended BASIX certificate was submitted with the Modification Application (see Class 1 supporting materials). Conditions of consent are imposed to ensure compliance with the BASIX certificate (see condition 41).

19. The parties agree and I accept that the requirements of the BASIX SEPP have been satisfied.

Willoughby Local Environmental Plan 2012

Clause 4.3: Height of Buildings

20. The Site has a prescribed maximum building height of 12 metres.

21. The original Development Consent approved an exceedance of the building height control in the order of 10%, pursuant to a cl 4.6 Variation Request which was provided and accepted.

22. The Modification Application, as amended, proposes the building height to be 13.5 metres, exceeding the maximum building height by 1.5 metres.

23. The parties submit that the increase in building height was in response to issues identified during the preparation of the Construction Certificate documentation. The increase in floor-to-floor heights was necessary due to the height of the drainage easement pit, which forced the ground floor level to be raised by 0.34 metres to satisfy various engineering design requirements. The remaining increase in height of 0.3 metres was due to an increase in floor thicknesses of 50 millimetres (at Levels 1, 2 and the roof) and 150 millimetres (at Level 3) related to structural issues and containment of services.

24. Despite the proposed variation to the building height control, the building will sit comfortably within the established and desired future streetscape. The final design outcome reflects a highly considered response to the constraints and opportunities identified through detailed site and contextual analysis and provides for a built form outcome compatible with development established in the adjacent medium and low-density residential zones.

25. The parties submit that the additional building height does not give rise to non-compliant solar access to surrounding development or unacceptable privacy impacts. Furthermore, that the overall height of the development, in particular the non-compliant building height elements, do not contribute to the overall bulk and scale of the development.

26. As the application is a s 4.55 modification application, cl 4.6 of the WLEP does not apply. However, planning grounds in support of the exceedance are addressed in the Addendum Statement of Environmental Effects, prepared by Boston Blyth Fleming dated May 2023 submitted in support of the Modification Application (see Class 1 supporting materials).

27. The parties agree the increase in the height of the proposed development, as amended, is consistent with the objectives of the height of building standard and acceptable in the context of this development.

Clause 4.4: Floor Space Ratio

28. Pursuant to cl 4.4, the FSR of the subject building is not to exceed 0.9:1, representing a maximum Gross Floor Area (GFA) of 557.7 square metres. The original Development Consent approved a GFA of 613 square metres representing an FSR of 0.98:1, pursuant to a cl 4.6 Variation Request which was provided and accepted.

29. The Modification Application, as amended, proposes to increase the GFA by 19 square metres, resulting in an increase in FSR to 1.02:1.

30. The following documents have been submitted in support of this variation:

1. Addendum Statement of Environmental Effects, prepared by Boston Blyth Fleming dated May 2023;

2. Supplementary Statement of Environmental Effects, prepared by Boston Blyth Fleming dated 2 August 2024;

3. Further GFA Response, prepared by Boston Blyth Fleming dated 4 October 2024; and

4. Daintry Peer Review correspondence to Project Lawyers dated 9 October 2024.

31. The parties agree the variation to the FSR and GFA standards will result in a design outcome that is not unacceptable and will not undermine the integrity of the FSR development standard and its objectives, or the objectives of the R3 Medium Density zone under the WLEP. The parties are satisfied, and I accept that the non-compliance is acceptable in the context of this development.

Clause 6.2: Earthworks

32. The Modification Application, as amended, proposes an increase to the proposed excavation works on the Site as approved under the original Development Consent.

33. These earthworks will be undertaken in accordance with the Council’s standard conditions of consent relating to excavation and earthworks (see for example conditions 18, 19, 24, 33).

34. The parties have considered the matters contained within cl 6.2(3) and are satisfied and I accept that the earthworks proposed will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

Clause 6.10: Minimum lot sizes for certain residential accommodation

35. Pursuant to cl 6.10, development consent for residential flat buildings must not be granted on a lot within the R3 zone unless the lot is at least 1,100 square metres. The Site has a land area of 620.2 square metres.

36. The original Development Consent approved the development application for a residential flat building on the Site pursuant to a cl 4.6 Variation Request which was provided and accepted. The parties agree the lot size and proposed land use remain unchanged by the Modification Application, as amended.

Conditions of consent

37. The parties have agreed modified conditions of consent as set out in Annexure A.

Conclusion and orders

38. For the reasons stated I am satisfied that there is no jurisdictional issue preventing the Court from making the orders sought in the Agreement.

39. Accordingly, the Court notes:

1. that the Council, as the relevant consent authority, has approved, pursuant to section 113(4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its Modification Application No DA-2017/467/A to include the following plans and documents:

Plan Name	Drawing No.	Rev	Date	Prepared By
Amended Architectural Plans
Location Plan	A-101	G	30 July 2024	RFA Architects
Site Analysis Plan	A-102	G	30 July 2024	RFA Architects
Existing/Demolition Plan	A-103	G	30 July 2024	RFA Architects
Compliance Diagrams	A-104	I	29 August 2024	RFA Architects
Proposed Site Plan and Roof Plan	A-200	I	29 August 2024	RFA Architects
Proposed Floor Plan – Basement	A-201	J	30 September 2024	RFA Architects
Proposed Floor Plan – Ground Floor	A-202	J	30 September 2024	RFA Architects
Proposed Floor Plan – Level 01	A-203	J	30 September 2024	RFA Architects
Proposed Floor Plan – Level 02	A-204	I	29 August 2024	RFA Architects
Proposed Floor Plan – Level 03	A-205	J	30 September 2024	RFA Architects
Elevations – North and South	A-301	I	29 August 2024	RFA Architects
Elevations – East and West	A-302	J	30 September 2024	RFA Architects
Streetscape Elevations – 2	A-311	-	-	RFA Architects
Sections	A-401	I	29 August 2024	RFA Architects
Sections and Window and Glazed Door Schedule	A-402	G	30 July 2024	RFA Architects
Driveway Section	A-411	G	30 July 2024	RFA Architects
Shadow Diagrams	A-501	I	29 August 2024	RFA Architects
View from Sun Diagrams	A-502	I	29 August 2024	RFA Architects
Height Plane Diagrams	A-503	I	29 August 2024	RFA Architects
Pre Adaptation and Post Adaptation – Units 2 and 4	A-701	I	29 August 2024	RFA Architects
Pre Adaptation and Post Adaptation – Units 6 and 7	A-702	I	29 August 2024	RFA Architects
Materials and Finishes, Perspective	A-801	G	30 July 2024	RFA Architects
Amended Landscape Plans
Cover Page	LDA000	8	29 August 2024	Studio 151
Landscape Plan, Ground Floor	LDA100	8	29 August 2024	Studio 151
Landscape Plan, Level 03	LDA101	4	29 August 2024	Studio 151
Landscape Sections	LDA200	6	29 August 2024	Studio 151
Landscape Elevations 1	LDA201	5	29 August 2024	Studio 151
Landscape Elevations 2	LDA202	4	23 August 2024	Studio 151
Amended Stormwater Plans
Ground Floor Stormwater Management Plan	C201	3	28 August 2024	EI Australia
OSD Tank and Details	C204	4	1 October 2024	EI Australia
Misc Stormwater Details	C205	3	28 August 2024	EI Australia
Reports and Advice
Estimated Development Cost Report	-	-	31 July 2024	Hugh B. Gage
Supplementary Statement of Environmental Effects	-	-	2 August 2024	Boston Blyth Fleming
Further GFA Response (email to Project Lawyers)	-	-	4 October 2024	Boston Blyth Fleming
Daintry Associates Peer Review (letter to Project Lawyers)	-	-	9 October 2024	Daintry Associates
Waste Management Plan	-	-	6 August 2024	Dickens Solutions

40. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA-2017/467 is modified in the terms set out in Annexure A.

3. Development Consent DA-2017/467 (as modified) is subject to the conditions set out in Annexure B.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

07 March 2025 - Correction made to representation.

Decision last updated: 07 March 2025