Land and Environment Court New South Wales Medium Neutral Citation: Cai v Willoughby City Council [2024] NSWLEC 1426 Hearing dates: Conciliation Conference 2, 3 July 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA/2022/365 for demolition of existing dwelling and associated structures and construction of a new three storey dwelling house, basement garage, swimming pool and associated works on land at 56 Headland Road, Castle Cove, NSW 2069 being Lot 27 in DP 30284, subject to conditions in Annexure A. Catchwords: DEVELOPMENT APPEAL – demolition and construct new dwelling – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Willoughby Local Environmental Plan 2012, cll 4.4A, 4.6 Category: Principal judgment Parties: Yunyun Cai (Applicant) Willoughby City Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/460094 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal by the Willoughby City Council (the Council) of DA-2022/365 (the Development Application) for demolition of existing dwelling and associated structures and construction of a new dwelling house, swimming pool and associated works (the Proposed Development) on land at 56 Headland Road, Castle Cove, NSW 2069 being Lot 27 DP 30284 (the Site). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on Site and back at Court on day 2. 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 and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, as noted below. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions, as set out in Annexure A. 4. Any reference in this judgment to the Proposed Development and the Development Application is to be read as the proposed development and the development application as amended. 5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council's Statement of Facts and Contentions. Satisfaction as to Jurisdiction 1. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters: State Environmental Planning Instruments (SEPPs) 1. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to: 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 2. State Environmental Planning Policy (Resilience and Hazards) 2021 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I note a BASIX Certificate has been provided in accordance with requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 Willoughby Local Environmental Plan 2012 (WLEP) 1. The parties assessment and conclusions concerning jurisdiction in respect of the relevant WLEP planning controls are set out as follows: "Zoning and Permissibility The site is zoned C4 – Environmental Living Zone. The proposed use 'dwelling house' is permissible with consent within the C4 Environmental Living Zone pursuant to clause 2.3(1)(c) of the WLEP and the Land Use Table. Demolition of the existing dwelling is permitted with consent pursuant to clause 2.7. Clause 2.3(2) provides that the zone objectives must be considered when determining a development application in respect of land within the zone. The C4 zone objectives are: To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. To ensure that residential development does not have an adverse effect on those values. To ensure that development preserves and enhances the natural features and bushland within the immediate locality (including natural vegetation, geological features, drainage patterns, the water table and the relationship of development to the natural topography) and does not increase bush fire hazard potential. To maintain the scale, character and streetscape of individual localities. To retain and enhance residential amenity, including views, solar access, aural and visual privacy, foreshore setting, landscape quality and heritage value. The Court would be satisfied that the proposed development is compatible with the zone objectives. Principal Development Standards Pursuant to clause 4.3, a maximum building height of 8.5m applies to the site. The building height is below 8.5m. This clause is satisfied. Pursuant to clauses 4.4 & 4.4A The site is located in Floor Space Area 'A' and sub-area 2. The site, which has an area of 964.5m2 is permitted to have a maximum FSR of 0.3:1. The DA, as amended, has an FSR of 0.38:1. The DA, as amended, is supported by a clause 4.6 request prepared by Minto Planning dated 3 July 2024. The clause 4.6 request provides a detailed assessment of clause 4.6 and its objectives, whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, whether there are sufficient planning grounds to justify the contravention of the development standard and whether the DA, as amend, will be in the public interest. The clause. 4.6 request concludes that: "It is therefore my opinion based upon the content of this submission that a variation of the maximum floor space ratio control as required by clause 4.4 and 4.4A of the Willoughby LEP 2012 in relation to the construction of a new dwelling at 56 Headland Road, Castle Cove is appropriate in this instance." The Court can be satisfied that the written clause 4.6 request adequately addresses the following matters that are required to be demonstrated under clause 4.6 of WLEP; that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, that there are sufficient environmental planning grounds to justify contravening the development standard, and the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the zone in which the development is proposed to be carried out. Additional Local Provisions Clause 6.2 - Earthworks. Earthworks are proposed as part of the development application, including the construction of a double garage in the basement. The extent of the proposed excavation, including setbacks is detailed in The Architectural plans (Rev F). The basement will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, consistent with the provisions of this clause. The DA was supported by a Geotechnical Report prepared by Ascentgeo Geotechnical Consulting dated 18 August 2022. The Geotechnical report provided that: "the proposed development is considered suitable for the site. No significant geotechnical hazards will result from the completion of the proposed development provided the recommendations presentable in table 4 are adhered to during design and construction." The Court, as the consent authority, can be satisfied that this clause is satisfied." 1. I note the Proposed Development requires a cl4.6 request to justify a contravention of the Floor Space Ratio (FSR) development standard contained in cl 4.4A of the WLEP. I have read the request drafted by Minto Planning Services dated 3 July 2024) and the parties analysis set out above which I do not need to repeat. 2. The parties agree that the cl4.6 request is prepared with the relevant requirements under cl 4.6(3), the development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives of the C4 Environmental Living zone, and there are adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary. 3. The Court accepts and agrees with the parties' position and I am satisfied to make the finding that the Applicant's written request under cl 4.6 of the WLEP to vary the floor space ratio development standard under cl 4.4A for the Proposed Development at 56 Headland Rd, Castle Cove, NSW 2069, is upheld. Public Participation 1. The development application was notified by Council between 5 December 2022 and 9 January 2023. No submissions were received by the respondent Council during the notification period. One submission was received on 12 April 2023. The Court was invited to visit the neighbouring property with the owner's town planner to observe the residents' concerns regarding privacy, loss of light and view loss. The issues raised have been taken into consideration by the Respondent, and the Development Application has addressed the reasonable concerns of the neighbour. I am satisfied the neighbouring objector was accorded procedural fairness and the public interest was considered. Conclusion 1. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 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. 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. Notations 1. The Court notes: 1. Willoughby City Council as the relevant consent authority has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA No. DA2022/365 in accordance with the plans and documents listed below: Architectural Plans DA 000 Location/Site Analysis and Roof Plan DA 100 Demolition Plan DA 101 Garage, Lower Ground & Ground Floor Plan and Basix Certificate DA 200 Elevations DA 201 Sections & 3D Views DA 803 Landscape Area (Proposed) Reports Clause 4.6 Variation Report Minto Planning Services 3 July 2024 Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA/2022/365 for demolition of existing dwelling and associated structures and construction of a new three storey dwelling house, basement garage, swimming pool and associated works on land at 56 Headland Road, Castle Cove, NSW 2069, being Lot 27 in DP 30284, subject to conditions in Annexure A. L Byrne Acting Commissioner of the Court 460094.23 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: 25 July 2024