Aplus Architecture Pty Ltd trading as Aplus Design Group v Willoughby City Council [2023] NSWLEC 1273

Land and Environment Court New South Wales

Medium Neutral Citation: Aplus Architecture Pty Ltd trading as Aplus Design Group v Willoughby City Council [2023] NSWLEC 1273 Hearing dates: Conciliation conference on 31 August 2022, 15 September 2022, 30 November 2022 Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA2022/95 (as amended) for alterations and additions to the retained part of the existing building to provide a mixed use building with retail on Ground Floor, Level 1 and Level 3, and residential apartments on Levels 3 to 6, above ground carparking, reduction in the number of apartments from 15 to 14, alterations to the rooftop communal open space and relocation of the stair and lift core and lot consolidation is approved, subject to the conditions of consent at Annexure A. (3) The Applicant's amended written request under clause 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP) prepared by Planning Ingenuity Pty Ltd and dated 11 January 2023, seeking a variation of the development standards for height under clauses 4.3 and 4.3A of the WLEP, is upheld. (4) The Applicant's amended written request under clause 4.6 of the WLEP prepared by Planning Ingenuity Pty Ltd and dated 23 February 2023, seeking a variation of the development standard for Floor Space Ratio under clause 4.4 of the WLEP, is upheld. Catchwords: DEVELOPMENT APPEAL – shop top housing development – variation to height of building development standard and floor space ratio development standard – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.11 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55 Environmental Planning and Assessment Regulation 2021, s 38, Sch 6, cl 3 Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10 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, s 2.119 State Environmental Planning Policy Amendment (Water Catchments) 2022 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings, cll 28, 30 Willloughby Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.4, 4.4B, 4.6, 6.7, Sch 1, cl 31 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC Texts Cited: Department of Planning, Industry and Environment, Planning Circular PS20-002 (May 2020) Draft Willoughby Local Environmental Plan NSW Department of Planning and Environment, Apartment Design Guide (July 2015) NSW Environment Protection Authority, Waste Classification Guidelines (November 2014) Category: Principal judgment Parties: Aplus Architecture Pty Ltd trading as Aplus Design Group (Applicant) Willoughby City Council (Respondent) Representation: Counsel: A Hemmings (Applicant) K Gerathy (Solicitor) (Respondent)