WINIM Developments Pty Limited v Willoughby City Council

[2023] NSWLEC 1113

Land and Environment Court

New South Wales

Medium Neutral Citation:

WINIM Developments Pty Limited v Willoughby City Council [2023] NSWLEC 1113

Hearing dates:

Conciliation conference on 23 January 2023, 8 February 2023, 1 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant agrees to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 is upheld.

(3) The Appeal is upheld.

(4) Development application No. 2021/123 is determined by the grant of consent for the demolition of existing dwellings and structures, amalgamation of lots, construction of a four-storey residential flat building consisting of six apartments and three (3) three-storey multi dwelling buildings consisting of seven dwellings, basement car parking, landscaping and associated works at 46, 48 and 48A Eastern Valley Way, Northbridge (legally known as Lot 2 in DP 544081, Lot 1 in DP 528691 and Lot 1 in DP 999869) subject to the conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — Residential flat building in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 7.32, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.8

Texts Cited:

Apartment Design Guide

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

WINIM Developments Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
G Appleby (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Maddocks (Respondent)

File Number(s):

2022/282647

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Willoughby City Council (the Respondent) of development application No. 2021/123 seeking consent for the demolition of existing dwellings and structures, amalgamation of lots, construction of a four-storey residential flat building consisting of six apartments and three (3) three-storey multi-dwelling buildings consisting of seven dwellings, basement car parking, landscaping and associated works at 46, 48 and 48A Eastern Valley Way, Northbridge (legally known as Lot 2 in DP 544081, Lot 1 in DP 528691 and Lot 1 in DP 9999869).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 January 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceeding that would be acceptable to the parties, subject to an adjournment being granted for the purpose of amending plans and other documents.

4. On 8 February 2023, I granted a further adjournment for the finalisation of amendments, and the preparation of documents required to support a decision of the Court.

5. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 1 March 2023.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [42]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for reasons I will now set out.

8. The site is located within the R3 Medium Density Residential zone, according to the Willoughby Local Environmental Plan 2012 (WLEP), in which residential flat buildings and multi dwelling development is permitted with consent, where consistent with the objectives for development in the R3 zone. The objectives are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To accommodate development that is compatible with the scale and character of the surrounding residential development.

•  To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network.

•  To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.

9. A height of building standard of 12m applies to the site, pursuant to cl 4.3 of the WLEP. The proposed development exceeds the height control by a maximum of 450mm and the Applicant relies upon a written request prepared by Planning Ingenuity in accordance with cl 4.6 of the WLEP.

10. The exceedance is at its greatest at the lift overrun, although an exceedance of 150mm is also evident in the northern portion of the roof of the uppermost level of the residential flat building.

11. As required by cl 4.6(3) of the WLEP, the written request seeks to justify the contravention of the height standard by demonstrating that compliance with the standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the standard.

12. The written requests contends that compliance with the standard is unreasonable or unnecessary because, firstly, the proposal is consistent with the objectives of the standard notwithstanding the non compliance.

13. The objectives of the height standard are:

(a)  to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape,

(b)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(c)  to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores,

(d)  to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development,

(e)  to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping,

(f)  to use maximum height limits to assist in responding to the current and desired future character of the locality,

(g)  to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood,

(h)  to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas.

14. The first objective is said to be achieved by demonstrating compatibility with existing, recently approved and proposed buildings within the immediate area of the site, including the residential apartment building located to the north of the site at No 52-54 Eastern Valley Way. The built form is generally consistent with the setback required by reference to the Willoughby Development Control Plan 2006, the Apartment Design Guide and setbacks observed in the area.

15. The second objective is said to be achieved by providing appropriate setbacks so that adequate visual and physical separation results. That portion of exceedance at the northern portion of the site contains no openings that would impose a loss of privacy and, by virtue of its location on the site, imposes no greater overshadowing or loss of view than would result from a development that complies with the height standard.

16. The third objective is said to be achieved by the siting and design of the residential flat building that addresses Eastern Valley Way. In particular, the flat roof at the uppermost level minimises the visual presence of the exceedance from the public domain.

17. The fourth objective is said to be achieved as there is no significant view, or outlook lost from adjacent development. That said, variation in height across the development and the provision of gaps between built form, allows for certain views to be retained.

18. The fifth objective, which articulates the ultimate function of the height control, is said to be achieved by development that is consistent with the four-storey height anticipated by the controls, and where the exceedance does not result in additional floor space that would intensify development density on the site.

19. The sixth objective is said to be achieved for reasons that are similar to those advanced at [14].

20. The seventh and eighth objective are not relevant.

21. Next, the written request advances environmental planning grounds said to be sufficient to justify the contravention of the standard, summarised as follows:

1. The exceedance is minor, is isolated to parts of the development on the site, and does not result in habitable floor space. Otherwise, the development complies with the height control, and no adverse impacts arise.

2. The greatest exceedance is in the vicinity of the lift overrun, located centrally in the proposed floor plate, and where the sloping topography contributes to the exceedance. Likewise, the exceedance at the northern portion of the roof of the residential flat building is also a result of topography, evident by the southern portion of the same structure being within the height control.

3. The proposal achieves certain objects of the EPA Act, and the aims of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

22. The written request also asserts the proposed development will be in the public interest because, firstly, it is consistent with the objectives of the height control standard for the reasons given, and secondly, because it is consistent with the objectives for development in the R3 zone. Additionally, when those matters at cl 4.6(5) of the WLEP are considered, the concurrence of the Secretary may be assumed.

23. The Respondent is satisfied that the written request has adequately addressed the matters to be demonstrated by cl 4.6(3) of the WLEP and that the proposed development will be in the public interest because it is consistent with the objectives of the standard, and of the zone.

24. I am also satisfied under cl 4.6(4) of the WLEP that the written request has adequately addressed the matter to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and of the R3 zone, for the reasons set out in the written request.

Other jurisdictional considerations

25. According to the floor space ratio (FSR) standard at cl 4.4 of the WLEP, the applicable FSR on the site is 0.9:1. The development complies with the FSR standard when the terms of subcl (2A)(b)(iii) are considered. Those terms cite the Special Provisions Area Map, that identifies land that is to be used for affordable housing purposes.

26. I note here that affordable housing is a local provision under cl 6.8 of the WLEP that applies to all but one lot comprising the site. The proposed development comprises one apartment identified as affordable housing, otherwise expressed at 4% of the proposed gross floor area on the portion of the site to which cl 6.8 applies. A condition of consent is proposed for the dedication of the apartment, in accordance with s 7.32 of the EPA Act, satisfying cl 6.8.

27. The site is identified by the relevant map at cl 6.1(2) of the WLEP as being within an area of Class 5 acid sulfate soils. However, the site is not within 500m of adjacent Class 1, 2, 3 or 4 land and works are not proposed below 5m AHD, and are not likely to lower the water table.

28. On the basis of the Preliminary Geotechnical Assessment prepared by Martens consulting engineers dated April 2021, which records the location and logs of four bore holes and six dynamic penetrometer test sites, and the Concept Stormwater and Engineering Plans, that include groundwater drainage details, prepared by Greenview Consulting, I consider those matters in respect of earthworks at cl 6.2(3) of the WLEP sufficiently addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. I have considered whether the site is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 and I accept the statements made in the Statement of Environmental Effects prepared by Planning Ingenuity Pty Ltd dated 14 April 2021 as to the likelihood of contamination, and it is on that basis that I consider the site unlikely to be contaminated as so suitable for the purpose proposed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

30. The site is located on Eastern Valley Way, which is a classified road. As such, the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) apply.

31. I have considered the requirements of s 2.119 of the Transport SEPP and I am satisfied that:

1. There is no other means of access or egress from the site by vehicles than by Eastern Valley Way.

2. The safety, efficiency and ongoing operation of Eastern Valley Way will not be adversely affected by the design of vehicular access to the site when the swept path analysis undertaken by Greenview Consulting is properly understood, that confirms access and egress by Semi Rigid Vehicle (SRV) is possible in a forward direction.

3. No source of smoke or dust from the proposed development is identified.

4. The traffic forecast to be generated by the development, when existing traffic data is understood, contributes a negligible additional load on the road network, and the classified road in particular.

5. The development is of a type that is sensitive to traffic noise and vehicle emissions, about which appropriate measures have been taken to ameliorate potential impacts such as solid concrete upstands to balconies as an acoustic buffer to road-generated noise.

32. I have also considered the provisions at s 2.120 of the Transport SEPP in respect of road noise and vibration. On the basis of the recommendations and conclusions recorded in the Acoustic Assessment dated March 2021, and the confirmation of the same in the acoustic addendum dated 20 December 2022, both prepared by GHD, I am satisfied that appropriate measures will be taken in respect of those matters at s 2.120(3) of the Transport SEPP.

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

33. As the proposal is for residential apartment development, the provisions of SEPP 65 apply.

34. Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following (at cl 28(2)):

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

35. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

36. The statement must conform to the provisions of cl 50 (1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Ben Pomroy (Reg No.7918), dated 22 February 2023, is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide, where not otherwise addressed in this judgment.

37. On the basis of the design statement prepared by Mr Pomroy, I am also of the opinion that the proposal is consistent with those standards at cl 30 of SEPP 65 that cannot be used as grounds to refuse development consent, and I consider that adequate regard has been had to the design quality principles and to the objectives specified in the Apartment Design Guide, in accordance with cl 30(2).

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

38. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1185296M_09 dated 23 February 2023) prepared by Greenview Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conclusion

39. 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.

40. 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.

41. The Court notes:

1. That Willoughby Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application No 2021/123 in accordance with the following plans and documents:

Architectural Plans prepared by Rothelowman

Plan Name	Plan No.	Rev	Dated
Cover Sheet	TP00.00	J	22.02.2023
Constraint Plan	TP00.02	E	22.02.2023
Proposed Demolition Plan	TP00.03	E	22.02.2023
Lower Ground	TP01.00	P	22.02.2023
Ground	TP01.02	P	22.02.2023
Level 1	TP01.03	K	22.02.2023
Level 2	TP01.04	K	22.02.2023
Roof & Site Plan	TP01.05	H	22.02.2023
Elevations	TP02.01	H	22.02.2023
Elevations	TP02.02	H	22.02.2023
Elevations	TP02.03	H	22.02.2023
Materials and Finishes	TP02.04	E	22.02.2023
Sections	TP03.01	H	22.02.2023
Sections	TP03.02	J	22.02.2023
Driveway Sections	TP03.03	H	22.02.2023
Shadow Diagrams	TP04.01	G	22.02.2023
Solar POV – Existing VS Proposed	TP04.02a	E	22.02.2023
Solar POV – Existing VS Proposed	TP04.02	H	22.02.2023
Solar POV – Existing VS Proposed	TP04.03b	E	22.02.2023
Solar POV – Existing VS Proposed	TP04.03	H	22.02.2023
Solar POV 44 EVW - Compliant Vs Proposed	TP04.04	E	22.02.2023
Solar POV 44 EVW - Compliant Vs Proposed	TP04.05	E	22.02.2023
Shadow Diagrams Proposed Vs Existing	TP04.06	D	22.02.2023
Shadow Diagrams Proposed Vs Existing	TP04.07	D	22.02.2023
Shadow Diagrams Proposed Vs Existing	TP04.08	D	22.02.2023
Development Summary	TP05.01	K	22.02.2023
Compliance Diagrams	TP05.02	L	22.02.2023
Compliance Diagrams - Landscaping	TP05.02a	G	22.02.2023
Compliance Diagrams - Landscaping	TP05.02b	F	22.02.2023
Compliance Diagrams – Recreational Area	TP05.02c	F	22.02.2023
Compliance Diagrams – Recreational Area	TP05.02d	F	22.02.2023
GFA	TP05.03	L	22.02.2023
TH and Apartment Schedules	TP05.04	H	22.02.2023
Height Plane	TP05.05	J	22.02.2023
Lot & Site Area Plan	TP05.09	F	22.02.2023
Fence and Screening Diagram	TP05.10	C	22.02.2023
Adaptable Unit Types	TP11.01	H	22.02.2023
Adaptable Unit Types	TP11.02	H	22.02.2023
Adaptable Unit Types	TP11.03	H	22.02.2023

Landscape Plans prepared by LandFX

Plan Name	Plan No.	Rev	Dated
Cover Sheet	00	J	20.02.2023
Contents Page	02	J	20.02.2023
Opportunities and Constraints	03	J	20.02.2023
Landscape Character / Private Open Space	04	J	20.02.2023
Planting Approach	05	J	20.02.2023
Materiality Approach	06	J	20.02.2023
Landscape Master Plan	07	J	20.02.2023
Landscape Plan - Lower Ground	08	J	20.02.2023
Landscape Plan – Ground	09	J	20.02.2023
Landscape Section A – Communal Open Space	10	J	20.02.2023
Landscape Section B – Northern Boundary	11	J	20.02.2023
Landscape Section C – Southern Boundary	12	J	20.02.2023
Landscape Section D – Southern Boundary	13	J	20.02.2023
Planting Schedule	400	J	20.02.2023
Planting Plan Lower GF Sheet 1 of 1	401	J	20.02.2023
Planting Plan Groundfloor Sheet 1 of 2	402	J	20.02.2023
Planting Plan Groundfloor Sheet 2 of 2	403	J	20.02.2023
Planting Plan Level 2 Sheet 1 of 1	404	J	20.02.2023
Planting Plan Level 2 Sheet 2 of 2	405	J	20.02.2023
Landscape Details	701	J	20.02.2023
Landscape Specification	800	J	20.02.2023

Stormwater Management Plans

Plan Name	Plan No.	Rev	Dated	Drawn By
Notes & Legends	C01	9	22.02.2023	Greenview Consulting
Lower Ground Drainage Plan	C02	9	22.02.2023	Greenview Consulting
Ground Floor Drainage Plan	C03	9	22.02.2023	Greenview Consulting
Site Stormwater Details Sheet 1	C04	9	22.02.2023	Greenview Consulting
Catchment Plan	C05	7	22.02.2023	Greenview Consulting
Driveway Profile Plan Sheet 1	C06	8	22.02.2023	Greenview Consulting
Driveway Profile Plan Sheet 2	C07	7	22.02.2023	Greenview Consulting
Driveway Profile Plan Sheet 3	C08	2	22.02.2023	Greenview Consulting
Footpath Profile Plan Sheet 1	C09	2	22.02.2023	Greenview Consulting
Footpath Profile Plan Sheet 2	C10	2	22.02.2023	Greenview Consulting
Lower Ground Turning Paths Sheet 1	C11	14	23.02.2023	Greenview Consulting
Lower Ground Turning Paths Sheet 2	C12	13	23.02.2023	Greenview Consulting
Lower Ground Turning Paths Sheet 3	C13	13	23.02.2023	Greenview Consulting
Lower Ground Turning Paths Sheet 4	C14	14	23.02.2023	Greenview Consulting
Lower Ground Turning Paths Sheet 5	C15	14	23.02.2023	Greenview Consulting
Ground Floor Turning Paths Sheet 1	C16	3	22.02.2023	Greenview Consulting

Document(s)	Dated
Amended Class 4.6 Variation Request prepared by Planning Ingenuity	23 February 2023
Amended Design Verification Statement prepared by Rothelowman	22 February 2023
BCA Report prepared by McKenzie Group	22 February 2023
Fire Engineering Statement prepared by Voss Grace + Partners	15 February 2023
Arborist Statement prepared by Blues Bros Arboriculture	3 February 2023
Traffic Impact and Parking Assessment prepared by Greenview Consulting	19 December 2022
Acoustic Addendum prepared by GHD	20 December 2022
BASIX Certificate	23 February 2023
BASIX Stamped Plans	23 February 2023
NatHERS Certificates and report	23 February 2023
Revised Thermal Specifications	23 February 2023

2. The Amended development application was filed with the Court on 1 March 2023.

Orders

42. The Court orders that:

1. The Applicant agrees to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 is upheld.

3. The Appeal is upheld.

4. Development application No. 2021/123 is determined by the grant of consent for the demolition of existing dwellings and structures, amalgamation of lots, construction of a four-storey residential flat building consisting of six apartments and three (3) three-storey multi dwelling buildings consisting of seven dwellings, basement car parking, landscaping and associated works at 46, 48 and 48A Eastern Valley Way, Northbridge (legally known as Lot 2 in DP 544081, Lot 1 in DP 528691 and Lot 1 in DP 999869) subject to the conditions of consent contained at Annexure A.

I certify that this and the preceding 12 pages are a true copy of my reasons for judgment.

……………………

T Horton

Commissioner of the Court

282647.22 Annexure A (401259, pdf)

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Decision last updated: 16 March 2023