Land and Environment Court New South Wales Medium Neutral Citation: Georgakis v Willoughby City Council [2023] NSWLEC 1537 Hearing dates: Conciliation Conference 5 and 6 September 2023 Date of orders: 19 September 2023 Decision date: 19 September 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA-2022/306 for demolition of an existing dwelling and associated structures and construction of a two-storey dwelling with basement car parking, swimming pool and associated works at 47 Upper Cliff Avenue, Northbridge, being the Lot 2 DP 1015659, subject to conditions annexed here to and marked Annexure A. Catchwords: DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919, Sch 8, Pt 14 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy Amendment (Water Catchments) 2022 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Pt 6.2, Div 2, Ch 10, Div 2,ss 10.23, 10.24 State Environmental Planning Policy – Building Sustainability Index: BASIX 2004, s 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A, 4.5, 5.10, 5.21, 6.1, 6.2 Category: Principal judgment Parties: Garifalia Georgakis (Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Staunton (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/92319 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 2022/306 for demolition of an existing dwelling and associated structures and construction of a two storey dwelling with basement care parking, swimming pool and associated works (the Proposed Development) at 47 Upper Cliff Avenue, Northbridge legally described as Lot 2 in DP 1015659 (the Site). 2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 and 6 September 2023. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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. 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. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and have explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement from which I have extracted and summarised below. 7. Owner's consent was given by way of letter to the Respondent for lodgement of the Development Application, filed with the Class 1 Application. 8. The Development Application was publicly notified from 14 October 2022 to 28 October 2022. Twenty-seven (27) public submissions were received in response to the public notification of the Development Application. I am satisfied that the parties have taken into consideration the various concerns raised in the public submissions and orally on site at the commencement of the Conciliation and hearing on 5 September 2023. 9. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the Site is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. A Stage 1 Preliminary Environmental Site Investigation (PSI) prepared by Hayes Environmental Consulting dated 22 June 2023 was prepared in support of the Development Application and filed on 6 September 2023. The PSI confirms that the Site does not have a history of potentially contaminating activities taking place and concludes that the Site is capable of being made suitable for the proposed use as a residential dwelling. 10. The Site is identified as being within the Sydney Harbour Catchment. Part 6.2, Div 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) sets out matters that require assessment, however these provisions do not apply to the DA due to the savings provision in s 6.65 of the BC SEPP. Section 6.65 relevantly provides that: 6.65 Savings and transitional provisions (1) The former provisions continue to apply, and the other provisions of this Chapter do not apply, to an application for development consent lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022. … (3) In this section— former provisions means— (a) Chapters 6–12 as in force immediately before their repeal by State Environmental Planning Policy Amendment (Water Catchments) 2022, and (b) the provisions of each environmental planning instrument amended by State Environmental Planning Policy Amendment (Water Catchments) 2022 that would be in force if the instrument had not been amended by that Policy. 1. The State Environmental Planning Policy Amendment (Water Catchments) 2022 commenced on 21 November 2022. The Development Application was lodged on 26 September 2022. Accordingly, Ch 10 of the BC SEPP applies to the Proposed Development. Matters for consideration are in Div 2. Matters that are relevant for consideration relate to stormwater quality measures and views (ss 10.23(a) and (b), 10.24). 2. The Site is not located in the mapped foreshores and waterways area but notwithstanding the scale form, design and siting of the building is based on an analysis of the land on which it is to be erected, the adjoining land and the likely future character of the locality. 3. The development will fit in with the existing visual qualities and therefore will maintain, protect and enhance the visual qualities of the harbour and its islands, foreshores and tributaries. 4. The development will form part of the existing urban development in the locality and will maintain, protect and enhance views including night views to and from Sydney Harbour. It has minimised adverse impacts on views and vistas to and from public places, landmarks and heritage items and results in the cumulative impact of development on views being minimised. 5. In accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) the Respondent notified Ausgrid as it is the electricity supply authority for the area in which the Proposed Development is to be carried out and Ausgrid raised no objections to the development 6. The development is 'BASIX affected development' and a BASIX Certificate must be issued for the development application, s 6 of the State Environmental Planning Policy – Building Sustainability Index: BASIX 2004 (BASIX SEPP). In compliance with the relevant requirements under the BASIX SEPP the Applicant has provided on 6 September 2023 an amended BASIX Certificate 1419856S prepared by Senica Consultancy Group Pty Ltd dated 6 September 2023 to reflect the Proposed Development. 7. The Proposed Development is permissible with consent pursuant to the land use table for the C4 Environmental Living zone of the Willoughby Local Environmental Plan 2012 (WLEP). 8. The Proposed Development will have a maximum height of 4.48m as detailed in the Amended Architectural Plans prepared by prepared by Duktig Design Pty Ltd dated 2 August 2023. Accordingly, the Proposed Development complies with the maximum height of building development standard of 8.5m pursuant to cl 4.3 of the WLEP. 9. The maximum floor space ratio (FSR) permitted on the Site under cl 4.4(2) of the WLEP would be 0.25:1, however, cl 4.4A(4) of the WLEP provides that the maximum FSR permitted on the site is 0.37:1. This is because the Site has an area of 666.5m2 and is located within 'Area 2'. The Proposed Development will have a total gross floor area of 238m² with a FSR of 0.36:1. The calculation of the gross floor area and FSR is included in the Amended Architectural Plans prepared by prepared by Duktig Design Pty Ltd dated 2 August 2023 (DA2.05 E). I note that cl 4.4(2A)(a) requires an access laneway of a battle-axe lot to be excluded from the calculation of the site area of that lot. The adjoining land at number 47A is not a battle-axe lot in that it is a regular lot with a right of access over the Site. The parties refer the Court to cl 4.5 of the WLEP which provides for Calculation of Floor Space Ratio and Site Area, specifically cl 4.5(4). I am satisfied that the Proposed Development is not prohibited on any portion of the Site. None of the dealings on the land or statutory terms contained in Pt 14 of Sch 8 of the Conveyancing Act 1919 result in the Proposed Development being prohibited on the portion of the land the subject of those dealings. Accordingly, I am satisfied that the Proposed Development complies with the FSR development standard. 10. The Site is not identified as a heritage item and is not located within a heritage conservation area for the purposes of cl 5.10 of the WLEP. 11. The consent authority must not grant development consent unless it is satisfied of the flood planning matters specified in cl 5.21(2)(a) – (e) of the WLEP. The matters in cl 5.21(3) are also to be considered. The Site is considered to be flood affected based on Council's adopted flood study. The extent of the flooding is considered to be overland flows that are predicted to top road levels in Ulric Lane, Northbridge, located to the north of the Site. The Applicant has prepared and submitted a Flood Assessment Report prepared by RTS Civil Consulting Engineers Pty Ltd dated 9 August 2021 filed with the Class 1 Application. The Flood Assessment Report concludes that the Proposed Development and vehicle crossing is not envisaged to have an adverse effect on surrounding properties and does not significantly divert overland flow away from the current flow paths provided the recommendations of this report are applied. Therefore, I am satisfied as required by cl 5.21 of the WLEP. 12. The Site is mapped as containing Class 5 acid sulfate soils and the terms of cl 6.1 of the WLEP are relevant. The Proposed Development is not likely to lower the water table below 1.0m AHD on any land within 500m of a Class 1, 2, 3 and 4 land classifications and therefore the further matters required in cl 6.1 of the WLEP do not apply. 13. The Proposed Development will require cut and fill across the Site and the parties advise that they have considered the matters listed in cl 6.2 of the WLEP regarding earthworks. The Site is not in proximity to, nor are earthworks likely to have any detrimental impact on, a waterway, drinking water catchment or environmentally sensitive area. In response to this clause, the Applicant has prepared: 1. Amended Architectural Plans prepared by Duktig Design Pty Ltd dated 2 August 2023. The amended architectural plans provide the extent of works to be done on the Site including the proposed vehicle crossing; 2. Sediment and Erosion Control Plan and Stormwater Plan prepared by Istruct Consulting Engineers dated 8 August 2022 details cut and fill across the Site; and 3. the Amended Civil Works Plan prepared by Istruct Consulting Engineers dated 7 August 2023 which provides the extent of works sought for the vehicle crossing. 1. For the reasons set out above as explained by the parties, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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. Notations: 1. The Court notes: 1. That the Respondent, Willoughby City Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-2022/306 in accordance with the documents listed below (Amended Development Application): Tab Document Date 1. Schedule of Amendments prepared by Duktig Design Pty Ltd 8 August 2023 2. Amended Architectural Plans prepared by Duktig Design Pty Ltd 2 August 2023 3. Amended Landscape Plans prepared by Contour Landscape Architecture 3 August 2023 4. Amended Civil Works Plan and Stormwater Plans prepared by Istruct Consulting Engineers Pty Limited 7 August 2023, 9 August 2023 and 5 September 2023 5. Stage 1 Preliminary Environmental Site Investigation prepared by Hayes Environmental Consulting 22 June 2023 6. Geotechnical Assessment prepared by Ascentgeo Geotechnical Consulting 21 June 2023 7. Pre and Post Overland Flow for Driveway Crossing prepared by RTS Civil Consulting Engineers Pty Limited 2023 8. Arboricultural Impact Appraisal, Root Investigation and Method Statement prepared by Ezi Grow 2 August 2023 9. Traffic Survey prepared by Trans Traffic Survey 22 July 2023 10. Traffic and Parking Assessment Report prepared by CJP Consulting Engineers 11 August 2022 11. View Impacts Report prepared by Dr Phillip Pollard 21 August 2023 12. Council Cost Report prepared by Duo Tax Cost Consultants 7 July 2023 13. Before You Dig Australia May 2023 14. Ausgrid Underground Cable Location Search Advice 16 May 2023 15. Jemena Gas Networks Plan 15 May 2023 16. NBN Indicative Plan 15 May 2023 17. Sydney Water DBYD Plan 16 May 2023 18. Telstra Asset Plans 16 May 2023 19. Certification of photomontages prepared by David Murgatroyd, Rockhunter 4 September 2023 20. Updated detailed survey plan prepared by NJB Surveying 1 August 2023 21. Certification of Height Poles prepared by NJB Surveying 4 September 2023 22. Amended BASIX Certificate and Nathers Certificate prepared by Senica Consultancy Group Pty Ltd 6 September 2023 1. The Applicant is not required to lodge the Amended Application on the NSW Planning Portal pursuant to section 38(4) of the Environmental Planning and Assessment Regulation 2021. 2. The Applicant filed the Amended Application with the Court on 5 September 2023 and the Amended BASIX Certificate and Nathers Certificate prepared by Senica Consultancy Group Pty Ltd on 6 September 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA-2022/306 for demolition of an existing dwelling and associated structures and construction of a two-storey dwelling with basement car parking, swimming pool and associated works at 47 Upper Cliff Avenue, Northbridge, being the Lot 2 DP 1015659, subject to conditions annexed here to and marked Annexure A. E Espinosa Commissioner of the Court Annexure A ********** 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: 19 September 2023