Land and Environment Court New South Wales Medium Neutral Citation: Aplus Architecture Pty Ltd v Willoughby City Council [2024] NSWLEC 1292 Hearing dates: Conciliation conference held 29 April and 17 May 2024 Date of orders: 05 June 2024 Decision date: 05 June 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-2023/182 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $2,000 within 28 days of the date of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA-2023/182 (as amended) for the adaptive reuse of existing building, addition of new lift core, modernisation of shopfront, amalgamation of 6 shops into 2 larger spaces and refurbishment of external design to revitalise street front at 272 Victoria Avenue, Chatswood, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions – commercial building – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 23, 37 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 Willoughby Local Environmental Plan 2012, cll 2.3, 4.3, 4.6 Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020 Category: Principal judgment Parties: Aplus Architecture Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Counsel: J Reid (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/325122 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by APlus Architecture Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-2023/182 (the DA) by Willoughby City Council (the Respondent). At the time of its lodgement on 17 July 2023, the DA sought consent for the adaptive reuse of an existing building, addition of new lift core, modernisation of shopfront, amalgamation of 6 shops into 2 larger commercial premises and refurbishment of external design to revitalise street front at 272 Victoria Avenue, Chatswood (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 April and 17 May 2024. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of the failure to provide owners consent, the failure to adopt appropriate sustainability measures, exceedance of the relevant height of building development standard and insufficient information, amongst other contentions. 5. To this end, further information has been provided by the Applicant, including owners consent, an Operational Waste Management Plan, ESD Report, Traffic Report, Construction Management Plan, Landscape Plan and a written request seeking to vary the relevant height of buildings development standard, along with other supporting documents and reports. This additional information is agreed to appropriately resolve each of the Respondent's contentions. 6. 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 amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owners of the land in a letter dated 29 April 2024 and provided with the signed s 34 agreement accompanying this matter. 9. The DA was publicly notified by the Respondent from 3 August to 25 August 2023. No submissions were received by the Respondent. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent now satisfactorily address each of those matters set out at s 4.15(1) of the EPA Act. 10. The parties agree, and I am satisfied, that the Willoughby Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned MU1 Mixed Use. The proposed development, comprising alterations and additions to an existing commercial building - characterised as commercial premises - is permissible with consent within the MU1 zone. 11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the MU1 Mixed Use zone objectives, which include to encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities, to ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces, to minimise conflict between land uses within this zone and land uses within adjoining zones, to encourage business, retail, community and other non-residential land uses on the ground floor of buildings, and to allow for city living on the edges of the city centre of Chatswood, which encourages public transport use, shopping and the use of businesses and recreational services that contribute to the vitality of the city, without undermining its commercial role. 12. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings. 13. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 14. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 15. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter. 16. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by HDC Planning and dated 6 May 2024. 17. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons: 1. Pursuant to cl 4.3 of the WLEP, the site is mapped with two separate maximum height of building development standards, being 7m for a depth of approximately 4.9m along the site's Victoria Avenue frontage, and 90m for the remainder of the site. 2. The existing two storey commercial building on the site is generally 6.5m in height to the top of the roof along the Victoria Avenue street frontage. Above this roof level is a parapet an additional 1m in height, which has the effect of causing the existing building to exceed the 7m height of buildings development standard by approximately 500mm. 3. The amended DA seeks to retain this existing roof and parapet, perpetuating the current height exceedance. Further, behind this existing parapet along Victoria Avenue a second vertical element of 1m in height is proposed, forming a new planter bed along the Victoria Avenue frontage and allowing for the introduction of proposed vegetation. 4. The remainder of the existing building and balance of the amended DA alterations and additions comfortably comply with the 90m height of buildings development standard. 5. The amended DA therefore proposes a maximum building height of 7.5m, exceeding the relevant development standard of 7m by 500mm and representing a variation of approximately 7% on that portion of the site addressing Victoria Avenue. 6. The amended DA is agreed to not alter the general scale, form and bulk of the existing building, resulting in no additional adverse impacts. The introduction of the proposed planter bed and new vegetation is agreed to improve the presentation of the building within the streetscape and from surrounding vantage points within the public realm and provides the benefit of better screening existing rooftop carparking. 7. The DA has been amended during the conciliation conference to resolve the Respondent's other contentions, such that construction of a rooftop planter bed and new vegetation provide improved visual amenity to the streetscape and associated public domain by screening of the existing roof top car park. 8. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. 9. The objectives of the WLEP Zone MU1 Mixed Use land use zone include to encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities; to ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces; to minimise conflict between land uses within this zone and land uses within adjoining zones; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; and to allow for city living on the edges of the city centre of Chatswood, which encourages public transport use, shopping and the use of businesses and recreational services that contribute to the vitality of the city, without undermining its commercial role. I am satisfied the amended DA meets these objectives. 10. The objectives of cl 4.3 of the WLEP include to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape; to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion; to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores; to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development; to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping; to use maximum height limits to assist in responding to the current and desired future character of the locality; to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood; and to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request. 2. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Chapter 2 of SEPP BC deals with clearing of vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA does not propose the removal of any trees and therefore Ch 2 of SEPP BC is not enlivened. 3. The parties agree, and I am satisfied, that the Environmental Planning and Assessment Regulation 2021 (EPA Reg) is a relevant statutory instrument. Pursuant to s 23 of the EPA Reg, and already dealt with at [8] in this judgment, the consent of the owners of the site has been obtained by the Applicant. 4. Additionally however, the amended DA proposes a cantilevered awning encroaching over the public street, owned by the Respondent, for which owners consent has not been explicitly provided. 5. In such an instance, and pursuant to s 39(2) of the LEC Act, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. This includes the granting of owners consent. As such, by granting development consent consistent with the parties' agreement, the Court would also be providing owners consent for the purpose of s 23 of the EPA Reg. 6. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 7. The Court notes that: 1. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Applicant has lodged the amended DA with the Court on XX May 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA-2023/182 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $2,000 within 28 days of the date of these orders. 3. The Applicant's written request, pursuant to cl 4.6 of the Willoughby Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application DA-2023/182 (as amended) for the adaptive reuse of existing building, addition of new lift core, modernisation of shopfront, amalgamation of 6 shops into 2 larger spaces and refurbishment of external design to revitalise street front at 272 Victoria Avenue, Chatswood, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court Annexure A Architectural Plans Part 1 Architectural Plans Part 2 Architectural Plans Part 3 Architectural Plans Part 4 Architectural Plans Part 5 Architectural Plans Part 6 Architectural Plans Part 7 Architectural Plans Part 8 Architectural Plans Part 9 Architectural Plans Part 10 Architectural Plans Part 11 Architectural Plans Part 12 Architectural Plans Part 13 Architectural Plans Part 14 ********** 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: 06 June 2024