Land and Environment Court New South Wales Medium Neutral Citation: Marcarian v Willoughby City Council [2022] NSWLEC 1373 Hearing dates: Conciliation conference on 5 July 2022 Date of orders: 14 July 2022 Decision date: 14 July 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) the appeal is upheld (2) Development consent is granted to Development Application DA-2021-18 for construction of a part two storey, part three storey dwelling house with pool to rear and associated landscaping works at 75 Coolawin Road, Northbridge, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – dwelling house – conciliation conference – amended plans – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Div 2 cll 10.18-10.27 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Taleen Marcarian (Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Sonter, Solicitor (Applicant) P Brown, Solicitor (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/53683 Publication restriction: No Judgment 1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, Taleen Marcarian, against the refusal by Willoughby City Council of their development application DA-2021-18. The development application seeks consent for construction of a part two-storey, part three-storey dwelling house with pool to the rear and associated landscape works. The development is proposed at 75 Coolawin Road, Northbridge (Lot 7 DP 18857). 2. The appeal was listed for mandatory conciliation on 5 July 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. Prior to the conciliation, amended plans and documentation were prepared and agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 4. 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 have formed this state of satisfaction for the following reasons: 1. The development application was made with the consent of the owner of the subject site. 2. The development application was notified by the Respondent for a period of 14 days from 5 to 19 February 2021. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent. 3. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. The development application was lodged under the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. On 1 March 2022, that instrument was repealed, and its provisions were transferred to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). 1. The site is located within the Sydney Harbour catchment with the foreshore area adjacent the site zoned W7 Scenic Waters: Casual use. A portion of the site adjoining the harbour is mapped as a Wetland Protection Area, however the development does not encroach into the wetland area. 2. Division 2 of SEPP BC contains a number of matters for consideration by consent authorities before granting consent to development: cl 10.18 of SEPP BC. The parties submit that the development application satisfactorily considers the matters at cll 10.19 to 10.27. I agree with and accept this conclusion. In determining the development application, I have given consideration to the matters for consideration at cll 10.19 to 10.27 of SEPP BC. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP RH. The Statement of Environmental Effects includes a review of the site history which indicates that it has been used for residential purposes since at least 1943. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development. 2. Pursuant to the provisions of the Willoughby Local Environmental Plan 2012 (LEP 2012) the site is zoned E4 Environmental Living. The proposed development, dwelling house, is permitted with consent in the zone. In determining the development application, I have given consideration to the zone objectives. 3. The proposed development is compliant with the maximum floor space control of 0.27:1 pursuant to cl 4.4(2A) of LEP 2012. 4. The proposed development is compliant with the maximum height control of 10m pursuant to cl 4.3A(1)(b) of LEP 2012. 5. However, the development application seeks to vary the 3.5m building height control under cl 4.3A(a) of LEP 2012. The proposed development will exceed this height standard by 1.32m. Consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2012 namely: (a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. 1. The development application is accompanied by a written request to vary the development standard prepared by ABC Planning, filed with the Court on 5 July 2022 (the written request). In accordance with cl 4.6(4)(a) of LEP 2012, I am satisfied that: 1. The written request, lodged pursuant to cl 4.6 of the LEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the development standard by demonstrating through a series of streetscape images that adherence to the control would render a development inconsistent with the prevailing streetscape. Further, as agreed by the Council, the written request establishes that no additional planning impacts are created by the variation. Further, I note that the written request demonstrates through a view loss assessment that the proposed development will have a reduced impact on views when compared with the original dwelling and the previous approval on the site. 2. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the non-compliance. I accept and adopt the reasoning of the written request in this regard. 3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the development standard. 4. Pursuant to cl 4.6(5) of the LEP 2012 the development application is not considered to raise any matter of significance for State or regional development. 5. The concurrence of the planning secretary has been delegated to the Council, a function that the Court can exercise pursuant to s 39 of the LEC Act. 1. The Applicant's amended written request under clause 4.6 of LEP 2012, prepared by ABC Planning dated July 2022 seeking a variation of the building height development standard under clause 4.3A of the LEP, is upheld. 2. Clause 6.1 of the LEP 2012 requires the consent authority to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The subject site is mapped as having class 5 acid sulfate soils, however, is not located within 500m of adjacent class 1. 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. 3. In making the orders, the Court also notes that: 1. Willoughby City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant amending Development Application DA-2021/18 in accordance with the documents per the documentation below. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made, but not finally determined, before that date: 2021 Regulation, Sch 6 cl 3: Plan name Drawing Number Revision Date Prepared by Amended Architectural Plans Site Plan & BASIX Requirements 2020-031-A1001 H 24.5.2022 BJB Architects Lower ground floor plan & rear terrace 2020-031-A1101 H 24.5.2022 BJB Architects Ground floor plan 2020-031-A1102 H 24.5.2022 BJB Architects First floor plan 2020-031-A1103 H 24.5.2022 BJB Architects Roof plan 2020-031-A1104 H 24.5.2022 BJB Architects Section Plan 2020-031-A1201 H 24.5.2022 BJB Architects Section Plan 2020-031-A1202 H 24.5.2022 BJB Architects West Elevation 2020-031-A1301 H 24.5.2022 BJB Architects East Elevation 2020-031-A1302 H 24.5.2022 BJB Architects South Elevation 2020-031-A1303 H 24.5.2022 BJB Architects North Elevation 2020-031-A1304 H 24.5.2022 BJB Architects Floor area and impervious area calculations 2020-031-A1401 H 24.5.2022 BJB Architects Site management plan 2020-031-A1402 H 24.5.2022 BJB Architects Natural Landscaped area calculation plan 2020-031-A1403 H 24.5.2022 BJB Architects Solar Eye Diagrams 2020-031-A1501 H 24.5.2022 BJB Architects Solar Eye Diagrams 2020-031-A1502 H 24.5.2022 BJB Architects Shadow Diagrams 2020-031-A1511 H 24.5.2022 BJB Architects Shadow Diagrams 2020-031-A1512 H 24.5.2022 BJB Architects Shadow Diagrams 2020-031-A1513 H 24.5.2022 BJB Architects Flat roof – 3D and Sections 2020-031-A2001 H 24.5.2022 BJB Architects Flat roof – solar eye diagrams 2020-031-A2011 H 24.5.2022 BJB Architects Flat roof – solar eye diagrams 2020-031-A2012 H 24.5.2022 BJB Architects Flat roof – solar eye diagrams 2020-031-A2013 H 24.5.2022 BJB Architects Flat roof – solar eye diagrams 2020-031-A2014 H 24.5.2022 BJB Architects Street view 3D 2020-031-A3001 H 24.5.2022 BJB Architects Street view 3D 2020-031-A3002 H 24.5.2022 BJB Architects Streetscape elevation 2020-031-A3011 H 24.5.2022 BJB Architects Street view Image 2020-031-A3021 H 24.5.2022 BJB Architects Street view Image 2020-031-A3022 H 24.5.2022 BJB Architects Street view Image 2020-031-A3023 H 24.5.2022 BJB Architects Amended Landscape Plans Hardscape Plan LPS34 21-107/1 D 01.06.22 Conzept Landscape Architects Landscape Plan LPS34 21-107/2 D 01.06.22 Conzept Landscape Architects Details Plan LPS34 21-107/3 D 01.06.22 Conzept Landscape Architects Details and site calculations LPS34 21-107/4 D 01.06.22 Conzept Landscape Architects Specification LPS34 21-107/5 D 01.06.22 Conzept Landscape Architects Amended Survey Plan Plan showing Detail and Levels over Lot 7 in DP 18857 9001 N/A 28.04.22 Total Surveying Solutions Amended Reports Amended Clause 4.6 report prepared by ABC Planning dated July 2022 Amended NatHERS Certificate prepared by Ecological Design Pty Ltd dated 21 June 2022 Amended BASIX Certificate and stamped plans prepared by Ecological Design Pty Ltd dated 22 June 2022 1. The amended development application documents listed above were lodged on the NSW planning portal on 30 June 2022, 4 July 2022 and 5 July 2022. 2. The Applicant filed the amended development application with the Court on 4 July 2022 and 5 July 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA-2021/18 for construction of a part two storey, part three storey dwelling house with a pool to rear and associated landscaping works, at 75 Coolawin Road, Northbridge, subject to conditions contained in Annexure 'A'. ………………………… D M Dickson Commissioner of the Court Annexure A (222908, pdf) ********** Amendments 18 July 2022 - Corrected clerical errors at paragraph [1]. 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: 18 July 2022