Zhang v Willoughby City Council

[2024] NSWLEC 1592

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Willoughby City Council [2024] NSWLEC 1592

Hearing dates:

Conciliation Conference 5 September 2024

Date of orders:

25 September 2024

Decision date:

25 September 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/2023/49, as amended, for alterations and additions to an existing dwelling house at Lot 51 in DP 708743, known as 5 Slade Street, Naremburn, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – Residential development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10

Land and Environment Court Act 1979, ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4,6

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1 and 4.2

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.1, 6.2

Texts Cited:

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

Yi Zhang (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
D Tyrrell (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Tyrrells Law (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2024/116852

Publication restriction:

Nil

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA-2023/49) (Development Application) seeking consent for alterations and additions to an existing dwelling and associated works on land identified as Lot 51 in Deposited Plan 708743, known as 5 Slade Street, Naremburn (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 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 23 February 2023.

4. The Development Application was refused by the delegated authority of Council on 4 October 2023.

5. The proceedings were commenced on 28 March 2024, being within the appeal period prescribed by s 8.10 of the EPA Act.

6. On 23 April 2024, the Court granted leave for the applicant to rely on amended plans and documents (April Amendments).

7. Further amended plans and documents were provided to the court on 21 August 2024 (cited at [32]) (August Amendments). The amendments can be summarised as including:

1. increasing the rear setback from 8.56m to 16m;

2. increasing the western and eastern side setbacks from 1m to 1.525m;

3. the roof ridge height of the rear addition has been reduced from RL87.63 to RL87.48 and the roof ridge height of the rear living space has been reduced from RL85.29 to RL84.91;

4. the landscaping area has been increased from 281.7m2 to 322.7m²;

5. new windows located in the “home library” on the East Elevation have been proposed as comprising frosted glass, and the window size of W2-5 has been reduced; and

6. Trees 7 and 8 are proposed to be retained and new screen plants have been proposed along the eastern side boundary.

8. The Class 1 Application and April Amendments (to the extent they are not superseded by the August Amendments) and August Amendments collectively comprise the Amended Development Application.

9. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 5 September 2024.

10. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

11. 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.

12. 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.

Public submissions

13. The Development Application was publicly notified from 9 to 23 March 2023. Five submissions were received in response to the notification raising issues including:

1. inadequate rear setback;

2. privacy;

3. solar access;

4. bulk and scale;

5. concrete roof;

6. landscaped area;

7. tree removal;;

8. retaining wall; and

9. excavation.

14. In addition, the Court heard from residents from 3 and 7 Slade Street and 50 Brooke St at the site view and visited these properties with the owners, parties and their experts.

15. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application and agreed conditions of consent.

Jurisdictional considerations

16. 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

17. The applicant is the registered proprietor of the Subject Land and provided landowner’s consent to the Development Application as lodged as per the Development Application Form dated 12 December 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I accept the parties’ submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

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

19. As the Development Application was submitted on the planning portal but not finally determined before 1 October 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 continues to apply (see State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1 and 4.2).

20. BASIX Certificate No A483947 and 04 dated 26 July 2024 is included in the Amended Development Application pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Part 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Subject Land as it is located within the Sydney Harbour Catchment. The parties agree that the Amended Development Application is consistent with the requirements for developments within the Sydney Harbour Catchment and will not result in any impact on such catchments (see letter from DE Engineering Solutions dated 26 August 2024 (Engineering Report)).

Willoughby Local Environmental Plan 2012

22. The Site is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

To provide for the housing needs of the community within a low 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 retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

To retain the heritage values of particular localities and places.

To encourage self sufficiency with respect to energy and food supply.

23. Pursuant to cl 4.3 of the WLEP (height of buildings), the Subject Land is subject to a maximum building height of 7m. The parties agree that the Amended Development Application complies with this standard.

24. Pursuant to cl 4.4 of the WLEP (floor space ratio), the Subject Land is subject to a maximum floor space ratio of 0.5:1. The parties agree that the Amended Development Application complies with this standard.

25. The parties agree that cl 5.10 (heritage conservation) applies to the Subject Land as it is located within the Naremburn Central Township Heritage Conservation Area. The proposal predominantly includes works to the rear of the Subject Land and the proposed rear addition as articulated in the Amended Development Application has been designed to reduce visual dominance while being consistent with the residential scale and character of the streetscape. The parties agree that the Amended Development Application is consistent with the requirements of the WLEP and Willoughby Development Control Plan 2023 (WDCP).

26. Pursuant to cl 6.1 of the WLEP, the parties agree that the Subject Land is mapped as “Class 5” on the Acid Sulfate Soils Map. The parties further agree that cl 6.1(3) is not enlivened as the proposed works will not lower the water table.

27. The parties agree that cl 6.2 of the WLEP (relating to earthworks) applies to the Amended Development Application as earthworks are proposed. The parties further agree that the matters listed in cl 6.2(3) have been considered. Having regard to resident concerns relating to earthworks, I note that:

1. the Amended Development Application includes a Geotechnical Investigation Report prepared by Eswnman dated 27 May 2024;

2. the agreed conditions of consent require:

1. a further geotechnical report to be prepared prior to the commencement of work which considers neighbouring properties (Condition 14); and

2. dilapidation reports to be prepared prior to the commencement of works in respect of 3 and 7 Slade Street and 50 Brooke St, Naremburn (Condition 14A).

Willoughby Development Control Plan 2023

28. I note that the parties have considered the WDCP in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

Remaining matters in s 4.15(1) of the EPA Act

29. The parties agree that the matters set out in s 4.15(1)(b), (c), and (e) of the EPA Act have been considered, the Subject Land is suitable for the proposed development, and the Amended Development Application is in the public interest.

Conclusion

30. 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.

31. 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.

32. The Court notes that the respondent has approved, pursuant to s 38 of the EPA Regulation, the Applicant amending Development Application No DA/2023/49 to rely on the following plans and documents:

Architectural Plans prepared by HRK + Architecture + Construction
Plan No.	Plan Name	Revision	Issue Date
DA01-01	Cover Page	D	26 July 2024
DA01-02	Basix Comments	D	26 July 2024
DA02-01	Proposed Site Plan	D	26 July 2024
DA02-02	Existing Site Plan & Site Analysis	B	2 February 2024
DA02-03	Proposed Demolition Plan – Site Plan	B	2 February 2024
DA02-04	Existing Front Elevation	B	2 February 2024
DA02-05	Existing Side Elevation 1	B	2 February 2024
DA02-06	Existing Rear Elevation	B	2 February 2024
DA02-07	Existing Side Elevation 2	B	2 February 2024
DA02-08	Proposed Demolition Plan – Existing Floor Plan	B	2 February 2024
DA02-09	Existing Fireplace Details	B	2 February 2024
DA03-01	Proposed Ground Floor Plan	D	26 July 2024
DA03-02	Proposed Lower Ground Floor Plan	D	26 July 2024
DA03-03	Roof Plan	D	26 July 2024
DA03-04	Proposed Front & Rear Elevations	D	26 July 2024
DA03-05	Proposed Side Elevation 1	D	26 July 2024
DA03-06	Proposed Side Elevation 2	D	26 July 2024
DA03-07	Section A-A	D	26 July 2024
DA03-08	Section B, C, D	D	26 July 2024
DA04-01	Area Plans	D	26 July 2024
DA04-02	External Finishes Schedule	B	2 February 2024
DA04-03	Window & Door Schedule	D	26 July 2024
DA04-04	Section With Site Surrounding	D	26 July 2024
DA04-05	Shadow Diagram	D	26 July 2024
DA04-06	View From Sun 1	D	26 July 2024
DA04-07	View From Sun 2	D	26 July 2024
DA05-01	Existing & Proposed Streetscape 1	B	2 February 2024
DA05-02	Existing & Proposed Streetscape 2	D	26 July 2024
DA05-03	Proposed Driveway Plan	D	26 July 2024
DA05-04	Driveway Long Section Details	D	26 July 2024
DA05-05	Cut & Fill Plan	D	26 July 2024
Landscape Plans prepared by CD Landscape Studio
Plan No.	Plan Name	Revision	Issue Date
L A12-01	Landscape Plan	D	26 July 2024
Stormwater Plans prepared by DE Engineering Solutions
Plan No.	Plan Name	Revision	Issue Date
CE001	Stormwater Drainage Plan	00	28 July 2024
CE002	Longitudinal Section	00	28 July 2024
CE003	Sections and Details	00	19 December 2022
CE004	Roof Catchment Plan	00	28 July 2024
CE005	Erosion & Sediment Control Plan	00	12 June 2024
Swept Path Analysis prepared by Cates Consulting Engineers
Plan No.	Plan Name	Revision	Issue Date
C1.00	General Notes	A	1 July 2024
C2.00	B85 Swept Path Analysis	B	28 July 2024
BASIX Certificate No. A483947_04 dated 26 July 2024
Report	Prepared by	Revision	Issue Date
Arboricultural Impact Assessment Report	Seasoned Tree Consulting	N/A	29 July 2024
Heritage Impact Report	GBA Heritage	N/A	29 July 2024
Sewer Inspection Report	OzDetect Pty Ltd	N/A	20 June 2024
Structural Engineer Report	DE Engineering Solutions	N/A	4 June 2024
Geotechnical Investigation Report	Eswnman Pty Ltd	00	27 May 2024
QS Cost Report	Duo Quantity Surveyors	N/A	4 July 2024
Letter from Engineers re Water Catchment	DE Engineering Solutions	N/A	26 August 2024

33. As set out at [7], the above documents were provided to the Court on 21 August 2024.

Orders

34. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/2023/49, as amended, for alterations and additions to an existing dwelling house at Lot 51 in DP 708743, known as 5 Slade Street, Naremburn, subject to the conditions of consent in Annexure A.

N Targett

Commissioner of the Court

116852.24 Annexure A

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Decision last updated: 25 September 2024