Wilbec Chatswood Pty Ltd v Willoughby City Council

[2025] NSWLEC 1591

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wilbec Chatswood Pty Ltd v Willoughby City Council [2025] NSWLEC 1591

Hearing dates:

Conciliation Conference 15 August 2025

Date of orders:

21 August 2025

Decision date:

21 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No DA-2022/240 is modified in the terms set out in Annexure A.

(3) Development Consent No DA-2022/240 as modified by the Court is Annexure B.

Catchwords:

APPEAL — Modification Application — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55

Land and Environment Court Act 1979 (NSW), ss 17, 34

Water Act 1912 (NSW)

Water Management Act 2000 (NSW)

Environmental Planning and Assessment Regulation 2021 (NSW), cl 113

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 144, 146, 147, Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 6.16

Cases Cited:

Wilbec Pty Ltd v Willoughby City Council [2024] NSWLEC 1234

Wilbec Pty Ltd v Willoughby City Council (No 2) [2024] NSWLEC 1263

Texts Cited:

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

Wilbec Chatswood Pty Ltd (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
S Leung (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2024/362826

Publication restriction:

Nil

JUDGMENT

Background

1. COMMISSIONER: This matter concerns an appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant seeking to modify DA-2022/240 (Original Consent). The Original Consent was granted by the Land and Environment Court on 17 May 2024 (see Wilbec Pty Ltd v Willoughby City Council [2024] NSWLEC 1234 and Wilbec Pty Ltd v Willoughby City Council (No 2) [2024] NSWLEC 1263) and approved the demolition of an existing four storey residential flat building (RFB) and construction of a 26-storey mixed use building comprising community facility uses and 42 residential units over four levels of basement parking on land identified as Strata Plan 4747, known as 42 Archer Street, Chatswood (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Modification Application

3. The Modification Application sought to amend the Original Consent including by amending the:

1. structural design;

2. service design;

3. stair and lift core location and layout;

4. basement parking, footprint and layout;

5. waste collection servicing, location and access;

6. podium footprint, arrangement and configuration; and

7. apartment mix.

4. On 2 October 2024, the applicant commenced these Class 1 proceedings by filing the Modification Application under s 4.55(8) of the EPA Act.

5. The Modification Application was publicly notified from 7 to 28 November 2024. One submission was received raising issues of site suitability and overshadowing.

6. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 12 March 2025 and terminated on 9 May 2025.

7. The matter was set down for hearing on 8, 9, 10 and 11 September 2025.

8. Prior to hearing, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A final signed s 34 agreement was provided to the Court on 14 August 2025 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application include:

1. Apartment mix: total apartment count changed to 35, comprising of 14x2 bedroom, 14x3 bedroom and 7x4 bedroom apartments;

2. Basement levels:

1. reduced parking allocation due to change in residential unit numbers from 21 car parking spaces to 17;

2. visitor parking rate at 1 per 7 units = 5;

3. increased motorcycle parking from 3 to 4;

3. Waste collection:

1. bin holding room moved to ground floor level;

2. allowance for 2 x SRVs to access basement level 1;

3. updated operational waste management to address transfer of bins to and from kerbside collection;

4. Architectural changes:

1. reinstated louvres to southern end of residential lobbies;

2. open lobbies from level 4 to 13;

3. planters on podium façade of levels 1 and 2;

4. changes to gross floor area (GFA);

5. changes to swale treatment along boundary; and

6. changes to landscaping treatment on ground floor,

(collectively, the Amended Modification Application).

9. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

10. 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 a decision that the Court could have made in the proper exercise of its functions. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow:

Owner’s consent

12. The Amended Modification Application is accompanied by letters of consent from the owners of the lots within Strata Plan 4747 (filed with the Court on 12 August 2025).

The EPA Act

13. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.

14. Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.

15. For the purposes of s 4.55(2)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:

1. the Amended Modification Application does not alter the proposed use of the land, namely, a 26-storey mixed use development with four levels of basement car parking;

2. the physical form of the building will generally remain the same as that which was originally approved and there is to be no change to the height of the building;

3. although there are some changes to the internal floor area and façade treatments, these changes are minor and the footprint and building envelope will remain as originally approved;

4. the external modifications proposed by the Amended Modification Application will not be visually intrusive or jarring, and the essence and nature of the development as originally approved will be maintained;

5. the defined podium and horizontally and vertically articulated tower will be maintained as originally approved; and

6. the proposed modifications do not result in a radical transformation of the approved development.

16. In relation to s 4.55(2)(b) of the EPA Act, the Original Consent imposed a deferred commencement condition requiring the applicant to apply to WaterNSW for an approval under the Water Management Act 2000 (NSW) or Water Act 1912 (NSW). On or around 5 May 2025, the applicant uploaded the Modification Application to the planning portal for re-notification. On 14 May 2025, the respondent referred the Amended Modification Application to WaterNSW. On 3 June 2025, WaterNSW issued General Terms of Approval (GTAs) for the Amended Modification Application. The parties agree, and I accept that, conditions 1 and 6 of the Agreed Conditions address any terms of approval that may be imposed by WaterNSW in respect of the proposal.

17. In relation to s 4.55(2)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.

18. As set out above at [5], the Modification Application was notified between 7 and 28 November 2024 with one submission received raising issues regarding site suitability and overshadowing. Further, on 14 May 2025, the respondent re-notified the Amended Modification Application for a period of 14 days. No submissions were received during that period.

19. In relation to s 4.55(2)(d) of the EPA Act, the parties agree, and I accept , that the submission received as part of the notification process has been taken into consideration in reaching agreement to resolve this matter. The parties agree that the relevant concerns of the objector have been considered and the Amended Modification Application addresses these concerns where relevant.

20. In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case, the Court – see Wilbec Pty Ltd v Willoughby City Council [2024] NSWLEC 1234) for the grant of the Original Consent.

21. Matters relevant to s 4.15(1) of the EPA Act are considered below.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. I accept the parties’ submission that it is satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Modification Application on the basis of the assessment carried out in the determination of the Original Consent, which is unchanged by the proposal.

State Environmental Planning Policy (Sustainable Buildings) 2022

23. An amended BASIX certificate No. 1311048_04 dated 22 May 2025 accompanies the proposal. The amended BASIX certificate confirms that the requirements under State Environmental Planning Policy (Sustainable Buildings) 2022 are satisfied.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

24. The parties agree that Ch 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) relating to design of residential apartment development applies to the Amended Modification Application as the proposal comprises mixed use development with a residential accommodation component which meets the specifications outlined in s 144.

25. For the purposes of s 146 of the Housing SEPP, the proposal is accompanied by a Design Statement – SEPP 65 Verification Statement prepared by BatesSmart dated 26 August 2024 (Design Verification Statement) which confirms that the qualified designer directed the design of the original development. Therefore, pursuant to s 146(2) of the Housing SEPP, the Modification Application does not require referral to the relevant design review panel.

26. Section 147(1) of the Housing SEPP relevantly provides that development consent for residential apartment development must not be modified unless the consent authority has considered specified matters. The proposal is accompanied by the Design Verification Statement which assesses and supports the proposed development against the design quality principles for residential development set out in Sch 9 of the Housing SEPP and the Apartment Design Guide (ADG). The parties agree, and I accept, that the Design Verification Statement can be relied on for the purposes of the Amended Modification Application.

27. Having regard to the Design Verification Statement and agreement of the parties, I confirm that I have considered the matters relevantly listed in s 147(1) of the Housing SEPP

Willoughby Local Environmental Plan 2012

28. The Subject Land is zoned MU1 Mixed Use under the Willoughby Local Environmental Plan 2012 (WLEP) and the proposal remains permissible with consent in the MU1 zone. I confirm that I have had regard to the MU1 zone objectives.

29. For the purposes of cl 4.3 of the LEP relating to height of buildings, the parties agree that the maximum height of buildings for the Subject Land is 90m and the Amended Modification Applicant does not propose to alter the building height.

30. In relation to cl 4.4 of the LEP relating to floor space ratio (FSR), the parties agree that the proposal complies with the FSR standard applicable to the Subject Land.

31. Pursuant to cl 6.16 of the WLEP relating to minimum lot sizes for commercial and mixed use development in Chatswood CBD, the parties agree and I accept that the Amended Modification Application does not change the lot size approved by the Original Consent.

Willoughby Development Control Plan 2023

32. The parties agree that the Amended Modification Application is capable of being approved having regard to the relevant provisions of the Willoughby Development Control Plan 2023.

Conclusion

33. 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.

34. The Court notes that the respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending its application to modify DA-2022/240 to include the following documents:

TAB	DOCUMENT	DATE
1	Schedule of Amendments prepared by Bates Smart	18 March 2025
2	Architectural Plans (Up to Rev L) prepared by Bates Smart Architects Pty Ltd • A00.000 – Drawing List (Rev I) • A01.001 – Site Plan (Rev I) – 18/03/2025 • A01.002 – Site Analysis (Rev H) – 18/03/2025 • A01.003 - Existing Site Plan (Rev L) – 18/03/2025 • A03.00 – Ground Level (Rev L) – 01/04/2025 • A03.01 – Level 01 (Rev K) – 18/03/2025 • A03.02 – Level 02 (Rev K) – 18/03/2025 • A03.03 – Level 03 (Rev K) – 18/03/2025 • A03.04 – Typical Plan (Level 4-17) (Rev L) – 01/04/2025 • A03.12 – Typical Plan (Level 18 – 23) (Rev F) – 18/03/2025 • A03.24 – Level 24 (Penthouse Lower Level) (Rev K) – 18/03/2025 • A03.25 – Level 25 (Penthouse Upper Level) (Rev L) – 01/04/2025 • A03.26 – Roof Plan (Rev I) – 18/03/2025 • A03.B01 – Basement 01 (Rev K) – 01/04/2025 • A03.B02 – Basement 02 (Rev K) – 01/04/2025 • A03.B03 – Basement 03 (Rev J) – 01/04/2025 • A03.B04 – Basement 04 (Rev K) – 01/04/2025 • A09.01 – East Elevation (Archer Street) (Rev K) – 18/03/2025 • A09.02 – South Elevation (Rev K) – 18/03/2025 • A09.03 – West Elevation (Claude Street) (Rev K) – 18/03/2025 • A09.04 – North Elevation (Rev K) – 18/03/2025 • A09.05 – Height Plane Axonometric (Rev G) – 09/08/2024 • A10.01 – Section AA (Rev K) – 18/03/2025 • A10.02 – Section BB (Rev L) – 01/04/2025 • A10.03 – Basement Ramp Section (Rev J) – 18/03/2025 • A11.01 – Façade Detail (Rev G) – 09/05/2024 • A11.02 – Façade Detail (Rev F) – 09/05/2024 • A11.03 – Façade -Podium (Rev E) – 09/05/2024 • A13.01 – Apartment Layouts (Rev J) – 01/04/2025 • A13.01.2 – Apartment Layouts (Rev A) – 01/04/2025 • A13.02 – Apartment Layouts (Rev J) – 01/04/2025 • A13.03 – Apartment Layouts (Rev J) – 01/04/2025 • A13.04 – Apartment Layouts (Rev J) – 01/04/2025 • A13.05 – Apartment Layouts (Rev E) – 01/04/2025 • A21.01 – Shadow Analysis Diagrams (Rev G) – 09/05/2024 • A21.10 – Views from the Sun (Mid-Winter 0900 to 1600) (Rev H) – 18/03/2025 • A22.01 – GFA Calculation Diagrams (Rev I) – 18/03/2025 • A22.02 – Area Calculation Plans (Rev J) – 18/03/2025 • A23.01 – Photomontage 1 – View from Archer Street (Rev F) – 09/05/2024 • A23.02 – Photomontage 2 – View from Archer Street (Rev F) – 09/05/2024 • A23.03 – Photomontage 3 – View of Podium & Laneway (Rev F) – 09/05/2024 • A23.04 – Photomontage 4 – East Elevation (Rev F) – 09/05/2024 • SK01.001 – Neighbouring Site (Rev E)	Various Dates
3	Stormwater Plans (Up to Rev G) prepared by AT&L • 22-964-DAC001 – Cover Sheet Locality Plan General Notes (Rev C) – 18/03/2025 • 22-964-DAC002 – General Arrangement Plan (Rev F) – 18/03/2025 • 22-964-DAC003 – Typical Details Sheet 1 (Rev B) – 18/03/2025 • 22-964-DAC004 – Typical Details Sheet 2 (Rev B) – 18/03/2025 • 22-964-DAC101 – Siteworks and Stormwater Drainage Plan (Rev G) – 18/03/2025 • 22-964-DAC110 – Pre-Development Stormwater Catchment Plan (Rev B) – 18/03/2025 • 22-964-DAC111 – Post Development Stormwater Catchment Plan (Rev G) – 18/03/2025 • 22-964-DAC120 – Stormwater Drainage On-Site Detention Tank Plan and Details Sheet 1 (Rev G) – 04/04/2025 • 22-964-DAC121 – Stormwater Drainage On-Site Detention Tank Plan and Details Sheet 2 (Rev G) – 04/04/2025 • 22-964-DAC122 – Stormwater Drainage Longitudinal Section (Rev E) – 18/03/2025 • 22-964-DAC131 – Stormwater Drainage Plan Basement 06 (Rev B) – 18/03/2025 • 22-964-DAC140 – Stormwater Drainage Plan – Swale Plan (Rev A) – 18/03/2025 • 22-964-DAC145 – Stormwater Drainage Plan – Swale Sections (Rev B) – 04/04/2025 • 22-964-DAC401- Proposed Pavement Plan (Rev G) – 18/03/2025 • 22-964-DAC501 – Proposed Longitudinal Sections Sheet 1 (Rev E) – 18/03/2025 • 22-964-DAC502 – Proposed Longitudinal Sections Sheet 2 (Rev E) – 18/03/2025 • 22-964-DAC510 – Control Line PD01 and PD02 Public Domain Long Sections (Rev E) – 18/03/2025 • 22-964-DAC511 – Control Line PD01 Public Domain Cross Sections Sheet 1 (Rev E) – 18/03/2025 • 22-964-DAC512 – Control Line PD01 & PD02 Public Domain Cross Sections Sheet 2 (Rev E) – 18/03/2025 • 22-964-DAC601 – Erosion and Sediment Control Plan (Rev G) – 18/03/2025 • 22-964-DAC602 – Erosion and Sediment Details (Rev B) – 18/03/2025	Various Dates
4	Landscape Report and Plans (Rev K) prepared by Arcadia Landscape Architecture • 400: Planting Schedule • 401: Softworks Ground Floor • 402: Softworks Level 01 • 403: Softworks Level 02 • 404: Softworks Level 03 • 405: Softworks Level 03 • 406: Softworks Level 25 • 407: Softworks Level 26	16 April 2025
5	Updated Operational Waste Management Plan prepared by EF Consulting	18 March 2025
6	Turning Path Diagram prepared by Varga Traffic Planning	18 March 2025
7	Details of Removalist Companies which could access the site a. Access Removals b. JB Removals	13 March 2025 15 March 2025
8	Details of conditions modified	-
9	Response to Contention 4 prepared by Planning Ingenuity	18 March 2025
10	Statement of Compliance – Access for People with a Disability prepared by Accessible Building Solutions Pty Ltd	4 April 2025
11	Traffic and Parking Assessment Report prepared by Varga Traffic Planning Pty Ltd	4 April 2025
12	BASIX Certificate No. 1311048M_04	22 May 2025
13	NatHERS Certificate	-
14	Owners Consent Letters	-

35. The applicant filed the amended documentation with the Court on 12 August 2025.

36. The Court notes that the parties agree that the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the modification application in the sum of $20,000 within 28 days of the date of these orders.

Orders

37. The Court orders that:

1. The appeal is upheld.

2. Development Consent No DA-2022/240 is modified in the terms set out in Annexure A.

3. Development Consent No DA-2022/240 as modified by the Court is Annexure B.

……………………….

N Targett

Commissioner of the Court

Annexure A (368 KB, pdf)

Annexure B (808 KB, pdf)

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Decision last updated: 21 August 2025