Land and Environment Court New South Wales Medium Neutral Citation: Marks v Willougby City Council [2024] NSWLEC 1324 Hearing dates: Conciliation Conference on 15 May 2024 Date of orders: 14 June 2024 Decision date: 14 June 2024 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent No DA-2017/484 is modified in the terms set out in Annexure A. (3) Development consent No DA-2017/484, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B. Catchwords: APPEAL – MODIFICATION – form of vehicle crossing - conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 , ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 34AA Willoughby Local Environmental Plan Texts Cited: Australian Standard AS/NZS 2890.1, Parking facilities Willoughby City Council Vehicle Crossings Guidelines Willoughby Development Control Plan 2023 Category: Principal judgment Parties: Aidan Austin Marks (Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Seymour SC (Barrister) (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/337209 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns an application to modify development consent No DA 2017/484 (the Consent) pursuant to 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is brought under s 8.9 of the EPA Act. The Consent was granted by Willoughby City Council (Council) for alterations and additions to a dwelling house at 240 Edinburgh Road, Castlecrag NSW 2068, known as Lot 3 DP 29198 (the Site). 2. The proposed modification No DA-2017/484/B relates exclusively to the form of vehicle crossing approved to be constructed between the Site and Edinburgh Road (Construction Area) under conditions 14 and 47 of the Consent. In effect, the Applicant seeks to vary the design of that vehicle crossing from the Standard Design 105 (SD105) to the Standard Design 106 (SD106). 3. The modification application was lodged with the Council on 19 July 2023. The application was refused on 11 October 2023 and the appeal lodged on 24 October 2023. 4. 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-site and then back at Court on 15 May 2024. I presided over the conciliation conference. The parties took the Court to a number of driveway crossings located up and down Edinburgh Rd from the Site. 5. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. The agreed position is for the Court to uphold the Class 1 appeal and amend conditions 14 and 47 of the approved development consent to permit erection of the vehicle crossing in accordance with the SD106. 6. Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification to the development consent No DA 2017/484. 8. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided to the Court. 9. Taking into account the parties' advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below. Section 4.55 – Environmental Planning and Assessment Act 1979 1. The Modification Application were made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties agreed that the development to which the Consent as modified relates is "substantially the same development" as the development for which the Consent was originally granted. 2. The Modification Application was not notified as the Council did not consider there was any additional impact, and no submissions were received. Willoughby Local Environmental Plan 2012 1. The Construction Area is adjacent to the Site but falls under the zone C4 Environmental Living under the Willoughby Local Environmental Plan 2012 (WLEP). The proposed works within the Construction Area will provide access to the dwelling on the Site and hence are ancillary to or involve development for the purpose of "dwelling houses" which is permissible in that zone. The vehicle crossing will be in aid of the supply of "low-impact residential development" consistent with the first objective of that zone. 2. The parties agree that on their assessment of the form of vehicle crossing there is no adverse effect on "special ecological, scientific or aesthetic values" of that zone and that the development will not fail to maintain "the scale, character and streetscape of individual localities" and that it will "retain and enhance residential amenity". In summary, the agreed SD106 vehicle crossing is not contrary to any objective of the C4 Environmental Living zoning of the WLEP. 3. The parties are satisfied, and the Court accepts that there are no relevant controls of the Willoughby Development Control Plan 2023 (WDCP) that the development would not meet. Relevantly, Section 4.2 of Part F requires that any new crossing "must comply" with Australian Standard AS/NZS 2890.1. No provision of the WDCP directs or controls the form of the crossing (i.e. whether as SD105 or SD106). 4. The parties draw to the Court's attention that the Willoughby City Council Vehicle Crossings Guidelines for crossings provides that "ground levels [may] need to be lowered or raised to prevent scraping of vehicles" in which case "the applicant will be responsible for works required to facilitate changes" which is the essence of this application. 5. The parties note and the Court accepts that the agreed SD106 outcome will provide a form of crossing that will comfortably avoid a vehicle "scraping" and also provide for the Council infrastructure of the road to avoid spilling stormwater in all flood events up to the 1% Annual Exceedance Probability. Conclusion 1. Based on the evidence before me, my observations on Site and oral submissions made to me on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. 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 orders that: The appeal is upheld. Development consent No DA-2017/484 is modified in the terms set out in Annexure A. Development consent No DA/2017/484, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B. L Byrne Acting Commissioner of the Court Annexure A Annexure B ********** 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: 14 June 2024