Maygood Australia Pty Limited v Willoughby City Council [2010] NSWLEC 1337

Land and Environment Court of New South Wales

CITATION : Maygood Australia Pty Limited v Willoughby City Council [2010] NSWLEC 1337

APPLICANT Maygood Australia Pty Ltd PARTIES : RESPONDENT Willoughby City Council

FILE NUMBER(S) : 11024 of 2009

CORAM: Murrell C

KEY ISSUES: APPEAL :- Modification application; streetscape design; bulk and mass.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 Willoughby Local Environmental Plan 1995 Willoughby Development Control Plan

DATES OF HEARING: 24 May 2010, 1 July 2010, and 20 & 21 July 2010

EX TEMPORE JUDGMENT DATE : 21 July 2010

APPLICANT Mr P Tomasetti SC SOLICITOR D C Balog & Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms S Duggan SC SOLICITOR Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

21 July 2010

11024 of 2009 Maygood Australia Pty Limited v Willoughby City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is a 96 modification application under the Environmental Planning and Assessment Act 1979 for a residential flat building approved by the Court 30 December 2008. At the time the Court approved the development application at 31-35 Devonshire Street, Chatswood, it provided for forty two units. Construction of the building has not commenced. 2 This s 96 modification application was submitted to the Willoughby City Council and the council determined the application by approval subject to a number of conditions. The applicant has subsequently appealed council's determination. 3 The Court has the benefit of hearing expert evidence from Ms Debra Laidlaw, an urban planner, and Mr Nigel Dickson, an architect urban designer whose office had input into the amended plans. 4 The proposal, as provided for in council's Statement of Facts and Contentions, is that the number of units be increased from forty two to forty seven. The unit mix is proposed to be changed in that the development application approved by the Court provided for fourteen one-bedroom units, the s 96 application maintains this at fourteen, the number of two-bedroom units increases from three to nine and the number of three-bedroom units decreases from twenty five to twenty four, providing for a total of forty seven units in all. 5 According to the council officers report, the reason for the s 96 application is that the applicant maintains it is in response to market forces. 6 Neighbour notification was carried out and it is noted that there were objections from the properties 34 to 38 inclusive in Claude Street, who also objected to the original development application on the basis of impacts on those dwelling houses. 7 As noted in the Court's previous judgment, the Claude Street properties are also the subject of a higher density zoning and in the longer term when the market dictates, no doubt they will be redeveloped and this development must share in the required separation distances for the future development potential of those sites. 8 The applicant has amended the s 96 plans during the course of these proceedings. It has transpired that there were a number of errors pointed out by the respondent and there has been an iteration of plans. Exhibit E are the plans that the applicant now seeks to rely on. 9 Ms Laidlaw in summary is of the opinion that the proposed modifications to the development seek to maximise the floor space at the expense of the design of the building in its context. She notes that the application as approved had a floor space ratio of 2.16:1 and the s 96 application has a floor space ratio of approximately between 2.3 to 2.35:1. The additional floor space has been achieved by the building being pushed out in terms of the side boundary setbacks. 10 In order to assess this development application I must have regard to the provisions of s 96 of the Environmental Planning and Assessment Act 1979. S 96 of the Act provides that modifications may be made if the consent authority is satisfied that it is substantially the same development. The council does not contend that the s 96 modification is not substantially the same development as that approved by the Court. 11 It is important in this exercise of assessing the modification application that I have regard to the original proposal as approved and not a comparison with the various iterations of the plans. Also in terms of subclause 3 of s.96 in determining an application for modifications, I must take into consideration the matters referred to in 79(C) (1) as are of relevance to the subject development application. In terms of legal authorities of this Court a s 96 application matters such as SEPP 1 objections are not required. 12 In terms of State Environmental Planning Policy No. 65 design quality of residential flat development, this is a relevant matter and there are 10 design principles that must be taken into consideration in assessment of modification applications. Modifications to consents must also have regard to a design verification statement and this was submitted for the s 96 application submitted to the council. Whilst this design verification is not in respect of the current set of plans, nonetheless there is no issue taken by the council in this regard. 13 The Willoughby Local Environmental Plan 1995 has a number of objectives of the floor space ratio as follows: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land; (b) to limit traffic generation as a result of the development and (c) to limit the bulk and scale of that development.