Castlenorth Pty Ltd v Willoughby City Council [2018] NSWLEC 1014

Land and Environment Court New South Wales

Medium Neutral Citation: Castlenorth Pty Ltd v Willoughby City Council [2018] NSWLEC 1014 Hearing dates: 21 December 2017 Date of orders: 30 January 2018 Decision date: 15 January 2018 Jurisdiction: Class 1 Before: Gray C Decision: Orders made – see [47] Catchwords: APPEAL – modification application – increase to lift overrun to allow lift to access approved communal open space – increase of lift car height – justification for increase in height - overshadowing – negligible impact on the public domain Legislation Cited: Environmental Planning and Assessment Act 1979 Willoughby Development Control Plan 2016 Willoughby Local Environmental Plan 2012 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Castlenorth Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Mr Merlino, Solicitor (Respondent)

Solicitors: Domain Legal (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/244782 Publication restriction: No

Judgment 1. On 20 July 2015, Willoughby City Council ("the Council") granted development consent for a five-storey mixed use development with commercial space and residential units at 147-151 Sailors Bay Road, Northbridge. The consent includes a roof terrace above the fifth storey for communal open space. As approved in the development consent, the roof terrace was not accessible from the lift that served the building, but was instead accessed by stairs from the fifth storey. A chair lift provided access to the roof terrace for those with a disability. The development consent was modified on 20 April 2016 to allow the lift to access the roof terrace. However, despite approving lift access to the terrace, the modification that was approved did not provide sufficient lift overrun to enable the lift to physically access the roof terrace. Castlenorth Pty Ltd ("Castlenorth") lodged a further modification application to seek that lift overrun, together with an increase in the height of the lift car from 2.1m to 2.3m, an increase in the height of the mechanical exhaust structure and a reduction in the area covered by the lift overrun and mechanical exhaust. The Council refused to grant the modification application. Castlenorth appeals against that decision pursuant to s 97AA of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. What is sought by Castlenorth would result in an increase in the RL of the approved height of the lift overrun by 1.03m. However, for the reasons below, the extent of what I am required to consider in this application is the uppermost 20cm portion of the additional height sought. At best, the Council asks me to consider the uppermost 45cm portion of the increase in the height. The proposed lift overrun has approximate dimensions of 2.7m x 3m, whereas the approved lift overrun has approximate dimensions of 4.8m x 3m. 3. In considering these portions of the proposed increased height for the lift overrun, I am not required to consider the appropriateness of a five-storey development with a roof terrace on the site. The development consent for the erection of a five storey building with a roof terrace was given by the Council, and is not before the Court in the present application. The modification application to allow a lift to access the roof terrace was similarly granted by the Council, and is not before the Court. There is no scope for me to reconsider those applications in the present proceedings. 4. However, what the Council approved through the modification application cannot physically be achieved. The parties' experts both agree that there needs to be an increase in the height of the lift overrun to allow what the Council approved to be carried out. The Council accepts that some increase is required. What remains in dispute is then the 20cm additional height that would be required for the lift overrun to accommodate an increase in the height of the lift car, and a question about whether the headroom sought by Castlenorth is indeed required (being a difference of 45cm, which includes the 20cm additional height for the lift car). 5. The Council opposes the modification of the consent on the basis that it will cause additional height in excess of the height control and additional overshadowing of the public domain. The public domain said to be overshadowed by the lift overrun is the public road. The Council also submits that the application should be refused on the basis that Castlenorth has not demonstrated that the increase in the height is justified, or that the overshadowing caused by the increase in the height has been minimised. The Council also submits that further exceedance of the applicable height development standard is not warranted. 6. For the reasons below I have determined that none of the contentions raised by the Council warrant refusal of the modification application, and therefore that the modification of the consent should be granted as sought. For the reasons that follow, the impacts about which the Council is concerned most likely arise from the building as approved, and do not arise from the present application. The present application completes the approval already granted by the Council for the lift access to the terrace, and provides greater amenity to the future residents by increasing the height of the lift whilst having negligible impact on the public domain.