Land and Environment Court New South Wales Medium Neutral Citation: Ng v Willoughby City Council [2021] NSWLEC 1690 Hearing dates: 9-10 November 2021 Date of orders: 11 November 2021 Decision date: 11 November 2021 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The clause 4.6 written request prepared by ABC Planning Pty Ltd dated July 2021 for variation to the height of building development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012 is upheld; (2) The appeal is upheld; (3) Development consent is granted to development application no. DA-2019/57 for the change of use from dwelling house to a boarding house including alterations and additions to the existing building, carparking and associated works at Lot F, DP448603 (No. 6) View Street, Chatswood NSW subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION ­– boarding house development in R2 Low Density Residential zone – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.21, 6.1, 6.2 Category: Principal judgment Parties: Chung Kei Ng (Applicant) Willoughby City Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicant) P Vergotis (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) McCabe Curwood (Respondent) File Number(s): 2021/23645 Publication restriction: No 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 refusal by Willoughby City Council (the Respondent) of development application DA-2019/57 for alterations and additions to the existing building for use as a 12-room boarding house, as amended, plus a manager's room, cleaners/storage room with ensuite bathroom and laundry, car parking for 4 vehicles, 4 motorcycle and 4 bicycle parking spaces, an outdoor communal area at the rear of the site, site landscaping and stormwater disposal at No 6 View Street, Chatswood (the site). 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 June 2021, and at which I presided. 3. The proceedings commenced onsite, after which the parties continued conciliation discussions via Microsoft Team. As parties were unable to reach in principle agreement on all matters in contention, I terminated the conciliation conference and parties subsequently consented to me hearing the matter. 4. On 19 October 2021, the Applicant amended the development application with the agreement of Willoughby City Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 5. The matter was initially listed before me on 9-10 November 2021. However, at the commencement of the hearing, parties advised the Court that the parties had reached agreement on terms of an agreement that was acceptable to the parties. 6. 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 9 November 2021. 7. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement. 8. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments: * Willoughby Local Environmental Plan 2012 (WLEP). * State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). * State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 1. I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the reasons that follow: 1. The site is located within the R2 Low Density Residential under the WLEP in which boarding house development is permitted with consent, and where consistent with the following objectives for development in the R2 zone: • 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. 1. The floor space, when expressed as a floor space ratio (FSR) is 0.38:1 which is below the development standard at cl 4.4 of the WLEP of 0.4:1. 2. The height of the proposed development exceeds the height of 8.5m set out at cl 4.3 of the WLEP, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the WLEP by ABC Planning dated July 2021. For the reasons that follow, I find the written request should be upheld. * The height exceedance of 2.31m above the height control is caused by an existing roof pitch that is proposed to be reinstated in the location and form of the existing, which is behind the ridgeline of the dwelling fronting View Street, and with roof mounted solar panels added within the plane of the roof pitch. * I accept that compliance with the height standard is unreasonable or unnecessary in the circumstances for the reasons set out in the written request. In particular, no adverse overshadowing, visual or acoustic privacy, visual, view or amenity impact results from the exceedance beyond an existing impact. I also note strict compliance would require the partial demolition of the existing roof that would likely result in an incompatibility with the scale and character, at odds with the zone objectives. * I also find these grounds to be sufficient environmental planning grounds for the purposes of cl 4.6(3)(b) of the WLEP, and I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the height control and the zone. * For the reasons set out above, I consider there to be no reason at cl 4.6(5) of the WLEP for the Secretary's concurrence to be withheld in the circumstances of the case. 1. On the basis of the Stormwater Concept Plans prepared by JCO Consultants and the agreed conditions of consent, I have considered those matters set out at cl 5.21(3) of the WLEP and I am satisfied as to the impact of the development on projected changes to flood behaviour, the intended design and scale of buildings, and the safe evacuation of people in the event of a flood. 2. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the WLEP as Class 5 but is not within 500m of adjacent Class 1, 2, 3 or 4 land. 3. On the basis of the existing and proposed excavation on the site depicted in the architectural drawings, and the Stormwater Concept Plans prepared by JCO Consultants, I do not consider the earthworks proposed in the development application will have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land in accordance with cl 6.2 of the WLEP. 4. I am satisfied that the proposed boarding house development complies with the provisions of the SEPP ARH for the reasons that follow: * The proposal achieves the provisions at cl 29 that cannot be used to refuse consent, but for building height and car parking provision. Failure to achieve a 'must not refuse' provision does not require refusal, and I accept the rationale set out in the Car Parking and Design statement dated 7 July 2021 prepared by PDC Consultants as to the quantum and merit of parking provided. * The proposed development complies with the development standards applicable to boarding houses in cl 30. * I accept the detailed assessment, supported by images of the local area, contained in the Supplementary Statement of Environmental Effects prepared by ABC Planning dated July 2021 which concludes that the proposed development, as amended, is consistent with the character of the local area, and the agreement of the parties' experts that the proposal as amended is compatible with the character of the local area as required by cl 30A. 1. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the 1943 aerial image, I accept that the site has remained a single dwelling house use and the site is unlikely to be contaminated. 2. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. 1220218M_02 dated 26 October 2021, prepared by Taylor Smith Consulting) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and EPA Regulation. Conclusion 1. 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. 2. 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. Orders 1. The Court notes that: 1. Willoughby City Council as the relevant consent authority for the purposes of cl 55 (1) of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending the development application no. DA-2019/57 (amended DA); 2. The amended DA has been uploaded to the NSW Planning Portal on 19 October 2021; and 3. The Applicant has subsequently filed the amended DA with the Court on 9 November 2021. 1. The Court orders that: 1. The clause 4.6 written request prepared by ABC Planning Pty Ltd dated July 2021 for variation to the height of building development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012 is upheld; 2. The appeal is upheld; 3. Development consent is granted to development application no. DA-2019/57 for the change of use from dwelling house to a boarding house including alterations and additions to the existing building, carparking and associated works at Lot F, DP448603 (No. 6) View Street, Chatswood NSW subject to the conditions set out in Annexure 'A'. ………………….. T Horton Commissioner of the Court Annexure A (296713, 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: 11 November 2021