Land and Environment Court New South Wales Medium Neutral Citation: Litkouhi v Willoughby City Council [2020] NSWLEC 1670 Hearing dates: Conciliation conference on 7 and 8 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [11] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 19 - Bushland in Urban Areas State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Willoughby Local Environmental Plan 2012 Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection 2006 Category: Principal judgment Parties: Daryoush Litkouhi (First Applicant) Homira Bezanehtak (Second Applicant) Willoughby City Council (Respondent) Representation: Counsel: P Lane (Applicants) J Merlino (Solicitor) (Respondent) Solicitors: Alvaro Edwards Solicitors (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/260878 Publication restriction: No Judgment 1. COMMISSIONER: Deferred Commencement Consent DA-2019/185 issued by Willoughby City Council ('Council') approved construction of a new dwelling, in-ground swimming pool, landscaping, tree removal and associated works on Lot 21 in DP 868610 also known as 233 Edinburgh Road, Castlecrag ('Site'). 2. The Applicants were dissatisfied with the determination and brought proceedings under Class 1 of the Court's jurisdiction pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act'). 3. The Court arranged a conciliation conference between the parties under s 34 of the LEC Act, which was held on 7 and 8 December 2020, and at which I presided. The parties came to agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, indicating it is a decision that the Court could have made in the proper exercise of its function. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been, or could be, satisfied (Jurisdictional Statement of Reasons provided 9 December 2020). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below. 6. By far the bulk of the Site is zoned E4 - Environmental Living under Willoughby Local Environmental Plan 2012 (WLEP). A small portion of the northern part of the Site is zoned E2 - Environmental conservation. The entirety of the proposed development would occur within the E4 zone and the proposed development is permissible within the zone. 1. The following additional provisions of the LEP need consideration: 1. In accordance with cl 2.3(2) of WLEP, I have had regard to the zone objectives. 2. The proposal complies with all relevant development standards in WLEP. 3. The Site is located within an area of Class 5 Acid Sulfate Soils on WLEP Acid Sulfate Soils map. In accordance with the advice of the parties I am satisfied that the proposal will not disturb, expose or drain acid sulfate soils. There is no requirement for an acid sulfate soils management plan under cl 6.3 of WLEP. 4. Clause 6.2 of WLEP is concerned with earthworks. In accordance with the advice of the parties I am satisfied in relation to the relevant considerations pursuant to cl 6.2(3) in that they were addressed in relevant development application documents including Sediment Drainage Services Erosion & Sediment Control Plan Details Drawing No SWDA 1.5 Revision P1. 5. The Site is not of heritage significance or located in a heritage conservation area. The Site is in the vicinity of a heritage item however the proposal does not have any adverse impacts on the heritage item. At folio 275 of the Council's Bundle are the comments from Council's heritage Consultant confirming that there will no significant impact as a result of the large 100m setback. 1. The following additional jurisdictional matters arise in other environmental planning instruments: 1. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the Site. In accordance with cll 25 and 26 of SREP consideration has been given to the visual impact that the Proposal would have upon Sydney Harbour and adjoining foreshore areas and the likely impact upon views of Sydney Harbour. I agree with Council and am satisfied that the proposed development will not have any significant adverse impact upon Sydney Harbour or adjoining foreshore areas. 2. In regard to State Environmental Planning Policy No 55 - Remediation of Land, I accept the advice of the parties that there are no former uses of the land, or other evidence, to suggest the land is contaminated. 3. The Site adjoins Stoker Park which is bushland reserved for public open space purposes under State Environmental Planning Policy No 19 - Bushland in Urban Areas ('SEPP 19'). I accept Council advice that the proposal is acceptable having regard to the matters in cl 9(2) of SEPP 19. 4. The Site is located within both a coastal environmental area and coastal use area under State Environmental Planning Policy (Coastal Management) 2018 ('Coastal Management SEPP'). I have considered the matters required to be considered under cll 13(2) and 14(2) of the Coastal Management SEPP and accept the advice of the parties that the Proposal is acceptable having regard to those matters. 5. The proposal was accompanied by a BASIX certificate which the Council, as consent authority to the development application the subject of the Consent, reviewed and deemed satisfactory. 6. I accept the advice of the parties that the proposal is not integrated development and does not require a bush fire safety authority under section 100B of the Rural Fires Act 1997. However, the Site is bushfire prone land and Planning for Bushfire Protection 2006 applies to the proposal. The amended Bushfire Assessment Report dated 6 March 2020 was referred to the Rural Fire Services for comment. The Rural Fire Services recommended conditions which have been incorporated into the agreed conditions of consent in Annexure A to the section 34 Agreement. Accordingly I am satisfied that the proposal meets the requirements of Planning for Bushfire Protection 2006. 1. I further note the advice of Council that the development application was notified in accordance with Council's Community Participation Plan. Council received 19 submissions in objection to the Development Application. The Council is satisfied that the Proposal as amended addresses the objections raised. I have taken into consideration the submissions and advice of the Council in response. I am satisfied that the requirements of s 4.15(1)(d) of the EPA Act have been met. 'No Development' Area and deferred commencement conditions 1. The Site contains an Area marked as "area Z" on DP 868610 by which a restriction as to use applies in favour of the Council as the benefitted public authority. The restriction provides "No development is allowed in the areas marked (Z) in the abovementioned plan". Although the restriction as to use is a relevant planning consideration, it is not a prohibition to the grant of development consent. As a matter of property rights, in order for the approved development to be carried out, the restriction as use must be varied. I am satisfied with the arrangements whereby the deferred commencement conditions provide a mechanism by which the variation will occur prior to commencement of the Consent. This will ensure that the approved development can be carried out when the consent commences its operation. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders that: 1. The appeal is upheld. 2. Deferred commencement development consent is granted to development application no. DA-2019/185 for construction of a new dwelling, in-ground swimming pool, landscaping, tree removal, and associated works on Lot 21 in Deposited Plan 868610, also known as 233 Edinburgh Road, Castlecrag, subject to the conditions in Annexure A. .…………………………….. P Walsh Commissioner of the Court Annexure A (1928492, pdf) Plans (16269274, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020