Land and Environment Court New South Wales Medium Neutral Citation: Novakovic v Willoughby City Council [2024] NSWLEC 1525 Hearing dates: Conciliation conference on 13 and 14 August 2024 Date of orders: 28 August 2024 Decision date: 28 August 2024 Jurisdiction: Class 1 Before: Miller AC Decision: The orders of the Court are: (1) The appeal is upheld. (2) The Applicant's written request pursuant to cl 4.6 of the Willoughby Local Environmental Plan 2012, seeking a contravention of the height of building development standard set out in cl 4.3A, is upheld. (3) The Applicant's written request under cl 4.6 of the Willoughby Local Environmental Plan 2012, seeking a contravention of the floor space ratio development standard set out in cl 4.4, is upheld. (4) Development Application No. 2022/265 for demolition of the existing dwelling and construction of a new dwelling house, proposed deck above the mean high watermark, retention of existing boatshed, new swimming pool, landscaping, and associated works at 15 Minimbah Road, Northbridge, is determined by the grant of consent subject to the conditions contained in Annexure A. Catchwords: APPEAL – development application – dwelling house – breach of building height development standard – breach of floor space ratio development standard conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 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, ss 2.6, 10.19, 10.21, 10.22, 10.23, Chs 2, 6, 10 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6, Ch 2 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Willoughby Local Environmental Plan 2012, cll, 4.3A, 4.4, 4.6, 6.1, 6.2, 6.4 Category: Principal judgment Parties: Daniel Novakovic (First Applicant) Katherine Novakovic (Second Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Staunton (Applicant) C Ireland (Respondent) Solicitors: Mills Oakley (Applicant) Apex Planning & Environment Law (Respondent) File Number(s): 2023/463224 Publication restriction: Nil JUDGMENT Introduction 1. This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 2022/265 for demolition of the existing dwelling and construction of a new dwelling house, retention of the current boatshed, swimming pool, landscaping, and associated works at 15 Minimbah Road, Northbridge (Lot 81 DP884500) (the site) by Willoughby City Council. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 13 August 2024 and concluded on 14 August 20024. I presided over the conciliation conference. Outcome 1. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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. 2. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Note on Jurisdiction that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Note, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports filed in the proceedings, the Council's bundle of documents filed in the proceedings, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 3. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 14 August 2024 and are listed under condition 1 of the conditions of consent at Annexure A. Jurisdictional matters 1. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The development application is made by the owners of the site. 2. The development works are for the purposes of a residential dwelling house and ancillary development, which is a permissible use in the C4 – Environmental Living zone in which the site is located, pursuant to the Willoughby Local Environmental Plan 2012 (WLEP). 3. The development is consistent with the objectives of the C4 – Environmental Living zone. Height of Buildings (4) The proposed development complies with the maximum 3.5m height limit applicable to that part of the land adjoining the street frontage (being in Area 1 as shown on the height of buildings map) under cl 4.3A(1)(a) of WLEP. (5) The proposed development complies with the maximum 3.5m height limit applicable to that part of the land with the foreshore area under cl 4.3A(5) of WLEP. (6) I am satisfied that consent should be granted notwithstanding the contravention of the height development standard on part of the site. The development standard establishes a maximum height of building of 10m (for land other than that land adjoining the street frontage and in the foreshore area as referred to above), pursuant to cl 4.3A(1)(b) of the WLEP. The proposed maximum height of 11.25m represents a contravention of 1.25m above the numerical standard (12.5% exceedance). This contravention arises primarily as a result of the slope of the land (which has a fall of approximately 25m from the Minimbah Road frontage to the rear) and does not give rise to any adverse impacts. The height non-compliance is generally limited to a small area of the garage roof and rear wall (not visible from the street frontage) and Level 4 below as a result of siting above a previously excavated sub floor level. Having regard to these and the other circumstances of the case I am satisfied that: 1. The written request dated 14 August 2024, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the very steep fall of the site away from the street frontage and measurement to existing ground levels which include subfloor areas. 2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts. 3. Based on the content of the written request and the town planning joint report filed 5 August 2024, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard. Floor Space Ratio (7) I am further satisfied that consent should be granted notwithstanding the contravention of the floor space ratio development standard. The development standard establishes a maximum floor space ratio of 0.5:1 on the subject land, pursuant to cl 4.4 of the WLEP. The proposed development represents an FSR of 0.56:1 (representing 479.46m2 of GFA where 424.6m2 is technically permissible under the control) and therefore represents a contravention of 54.86m2 above the numerical standard (12.9% exceedance). This contravention arises from the need to include significant circulation space within the building due to the form which necessarily steps down the significant site slope and the inclusion of the existing boat shed in the GFA which does not contribute to building bulk or scale. Accordingly, I am satisfied that: 1. The written request dated 14 August 2024, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the maximum FSR development standard by demonstrating that the proposal is the result of a skilful design that responds to the site opportunities and constraints, demonstrates a bulk and scale consistent with that of surrounding development, and will not give rise to any unreasonable impacts on neighbouring properties. 2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal achieves the objectives of the standard notwithstanding the non-compliance. 3. Based on the content of the written request and the town planning joint report filed 5 August 2024, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard. Acid Sulfate Soils (8) The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and accordingly no further assessment is required in accordance with cl 6.1 of WLEP. Earthworks (9) I have considered the matters under cl 6.2(3) Earthworks of WLEP and am satisfied that the submitted stormwater plans (Glenn Haig & Partners, dated 25 July 2024), geotechnical report (Crozier Geotechnical Consultants, dated 8 August 2024) and conditions of consent 12, 15, 43, 69, 76, and 86 of Annexure A will ensure that the proposed earthworks do not give rise to any adverse environmental impacts. Foreshore Building Line (10) The proposed development is consistent with cl 6.4(2) of WLEP which provides that limited development is permissible on that part of the site affected by the foreshore building line. I note only a swimming pool and retaining walls and retention of the existing boat shed are proposed within the affected area in accordance with this provision. RH SEPP (11) Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies as the land is located within both the 'coastal environmental area' and the 'coastal use area'. Having regard to the proposed design (which includes site benching) and conditions of consent, I am satisfied in respect of the relevant matters contained in ss 2.10, 2.11 and 2.12 having regard to the assessment contained in the Statement of Environmental Effects prepared by LK Planning (dated 4 August 2022). In respect of s 2.13 I note that no certified coastal management program applies to the land. (12) Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the RH SEPP, and the parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required. TI SEPP (13) The proposed development has the potential to affect an electricity power line or an electricity distribution pole. Therefore, in accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) the matter was notified to the electricity supply authority (Ausgrid) on 9 September 2022 and general terms of approval were issued on 14 September 2022 which have been incorporated into the conditions of consent at Annexure A. BC SEPP (14) Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact is assessed in the arborist report annexed to the Joint Expert Report prepared by Creative Planning Solutions dated 31 July 2024. (15) Chapter 6 of the BC SEPP does not apply to the proposed development having regard to the savings provision at s 6.65. Accordingly, the previous Ch 10 which applied at the DA lodgement date of 24 August 2022 applies. Chapter 10 applies to the Sydney Harbour Catchment and the 'Foreshores and Waterways Area' in which the site is located. Division 2 sets out the matters that must be taken into consideration before consent is granted. I am satisfied that these matters have been satisfactorily addressed by the proposed development having regard to the submitted stormwater plans previously cited at (9) above and conditions of consent at Annexure A including the requirements of ss 10.19, 10.21 and 10.22. Sections 10.23 and 10.24 have also been addressed through the visual impact assessment annexed to the joint expert report (Urbaine Design Group, 31 July 2024) and the design amendments included in the final plans the subject of the Agreement. (16) The development application, in its original form, was notified between 12 and 26 September 2022. Two written submissions were received, and two oral submissions was made at the site inspection on 13 August 2024. I have considered the issues raised in those submissions. BASIX Development (17) The original application was accompanied by a BASIX certificate (Cert No. 130946S dated 6 July 2022) prepared by Efficient Living as required by s 27 of the EPA Reg. An updated BASIX Certificate will be required as a condition of consent prior to the issue of a construction certificate (condition 17). Conclusion 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders 1. The orders of the Court are: 1. The appeal is upheld 2. The Applicant's written request pursuant to cl 4.6 of the Willoughby Local Environmental Plan 2012, seeking a contravention of the height of building development standard set out in cl 4.3A, is upheld. 3. The Applicant's written request under cl 4.6 of the Willoughby Local Environmental Plan 2012, seeking a contravention of the floor space ratio development standard set out in cl 4.4, is upheld. 4. Development Application No. 2022/265 for demolition of the existing dwelling and construction of a new dwelling house, proposed deck above the mean high watermark, retention of existing boatshed, new swimming pool, landscaping, and associated works at 15 Minimbah Road, Northbridge is determined by the grant of consent subject to the conditions contained in Annexure A. Helena Miller Acting 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: 28 August 2024