Background
Linksquare Enterprises Pty Ltd appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Willoughby City Council’s deemed refusal of a development application for 64 Stanley Street, Chatswood. The application sought approval to demolish the existing dwelling and structures and construct a five-storey residential apartment building containing four units, including a two-storey penthouse, with basement parking, landscaping and associated works.
At conciliation conferences conducted under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed on amendments addressing the Council’s contentions concerning matters including building bulk and scale, setbacks, privacy, overshadowing, landscaping, flooding, parking, vehicle access, tree retention and waste management. Four public submissions had separately raised concerns about privacy, overshadowing, neighbourhood character, setbacks, excavation, traffic and parking; the Court found those matters had been satisfactorily considered in the parties’ agreement, amended application and proposed conditions.
The Court’s Holding
Acting Commissioner Pullinger held that the parties’ agreed outcome was one the Court could lawfully make under s 34(3) of the Land and Environment Court Act. The amended proposal was permissible in the R3 Medium Density Residential zone, complied with the applicable 17.5-metre height limit and proposed a floor-space ratio of 1.45:1, below the applicable 1.5:1 maximum. The Court was also satisfied that the relevant environmental-planning requirements, including those concerning flooding, earthworks, contamination, vegetation, stormwater, sustainable-building obligations and apartment design, had been addressed.
Although the amended building had five storeys rather than the four permitted by s 176 of State Environmental Planning Policy (Housing) 2021, the Court upheld the applicant’s cl 4.6 variation request. It found that strict compliance was unreasonable or unnecessary and that sufficient environmental-planning grounds supported the variation because the recessed fifth storey produced an appropriate form and scale, the building complied with the height limit, and the extra storey did not cause unreasonable additional visual, privacy, view or overshadowing impacts relative to a compliant-height building.
The Court granted leave to amend the application, upheld the appeal and granted conditional development consent. It also ordered Linksquare to pay the Council $7,500 for costs thrown away because of the amendments.
Key Takeaways
- A five-storey apartment building was approved despite a four-storey control because the Court accepted a properly supported cl 4.6 variation.
- Compliance with the 17.5-metre height limit, together with the setback of the uppermost storey, supported the finding that the additional storey would not create unreasonable additional impacts.
- In a s 34 conciliation matter, the Court must independently determine that the parties’ agreed decision is one it could make in the proper exercise of its functions.
Why It Matters
The decision illustrates how the low- and mid-rise housing provisions of SEPP Housing can increase otherwise applicable height and floor-space-ratio standards while leaving the number-of-storeys control to be addressed separately. A proposal exceeding that storeys control may still obtain consent where a cl 4.6 request establishes sufficient planning grounds and demonstrates acceptable impacts.
It also distinguishes between resolving a council’s formal contentions and considering issues raised by public submitters. Here, the amendments and conditions resolved the Council’s contentions, while the Court found that the matters raised in public submissions had been satisfactorily considered.