Warner v Willoughby City Council

[2021] NSWLEC 1558

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warner v Willoughby City Council [2021] NSWLEC 1558

Hearing dates:

Conciliation conference on 21-22 September 2021

Date of orders:

23 September 2021

Decision date:

23 September 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The clause 4.6 request (for a variation to the height of buildings development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012) prepared by Peter George Warner and dated August 2021 is upheld;

(2) The appeal is upheld;

(3) Development Application number DA-2020/310 for alterations and additions to the existing dwelling on land identified as Lot 1 in Deposited Plan 210157 and known as 89 Macquarie Street, Roseville NSW 2069, is approved in accordance with the conditions included at Annexure ‘A’.

Catchwords:

APPEAL – development appeal – appeal concerning conditions – breach of height development standard – conciliation conference – agreement reached

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

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

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Willoughby Local Environmental Plan 2012, cll 4.2, 4.15, 5.10

Category:

Principal judgment

Parties:

Peter George Warner (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/103026

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns the grant of development consent DA-2020/310 for alterations and additions to an existing dwelling at 89 Macquarie Street, Roseville, on conditions with which the applicant is dissatisfied. The alterations and additions include a new internal layout and staircase, a new carport, and a first storey addition containing two bedrooms and a bathroom within a pitched roof and raked ceiling. The Amended Class 1 Application, which was the subject of a grant of leave on 18 June 2021, is lodged pursuant to the right of appeal existing under s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). As there is no right to appeal against the conditions of a development consent, the appeal concerns the whole of the decision made by the Council. In considering the appeal, the Court re-exercises the functions of the Council in determining the application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 commenced on 21 September 2021. I presided over the conciliation conference.

3. At the conciliation conference, the Council agreed for the applicant to amend the development application by the provision of a clause 4.6 request for a variation to the height of buildings development standard under cl 4.3 of the Willoughby Local Environmental Plan 2012 (WLEP), prepared by Peter George Warner and dated August 2021. The clause 4.6 request was uploaded by the applicant on 21 September 2021 to the NSW Planning Portal, and was subsequently filed with the Court on the same date. The Council accepted the document and lodged it on the NSW Planning Portal, pursuant to the requirement for the amendment of development applications in cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

4. At the conciliation conference and on the basis of (inter alia) the clause 4.6 request that now forms part of the development application, the parties reached an agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The outcome that is agreed upon by the parties differs from the consent granted by the Council by the removal of a condition that had required the reduction in height of the upper storey addition. The signed agreement is supported by a Statement of Reasons, which was provided by email to the Court on 21 September 2021 and sets out the background and history of the appeal proceedings, and the Council’s reasons for entering the agreement.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent 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:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the WLEP.

• The site on which the development is proposed is located within the North Chatswood Heritage Conservation Area. I am satisfied, based on the assessment by the Council’s Heritage Officer (dated 15 February 2021) that the replacement carport and proposed rear extension will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the WLEP.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8m, pursuant to cl 4.3(2) of the WLEP. The proposed maximum height of 8.8m represents a contravention of 0.8m above the numerical standard. The contravention occurs where the new ridge of the upper storey will be located. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises as the existing ground floor is elevated 1.08m above the ground level (existing), and retaining the ground floor level is an appropriate outcome that will retain the contribution of the current dwelling to the heritage conservation area, and avoids significantly increasing the scope of the proposal. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. For the reasons outlined in the written request, the proposal is also in the public interest as it is consistent with the objectives of the zone and of the height development standard.

• The proposed development complies with the other applicable development standards in the WLEP.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the EPA Regulation.

• The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the site, but it is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP.

6. 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)).

7. 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 EPA Act.

8. The Court orders that:

1. The clause 4.6 request (for a variation to the height of buildings development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012) prepared by Peter George Warner and dated August 2021 is upheld;

2. The appeal is upheld;

3. Development Application number DA-2020/310 for alterations and additions to the existing dwelling on land identified as Lot 1 in Deposited Plan 210157 and known as 89 Macquarie Street, Roseville NSW 2069, is approved in accordance with the conditions included at Annexure ‘A’.

……………………….

J Gray

Commissioner of the Court

Annexure A (238895, pdf)

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Decision last updated: 23 September 2021