Land and Environment Court New South Wales Medium Neutral Citation: Camuglia v North Sydney Council [2020] NSWLEC 1406 Hearing dates: Conciliation conference on 28 August 2020 Date of orders: 03 September 2020 Decision date: 03 September 2020 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [29] Catchwords: DEVELOPMENT APPLICATION – residential flat building – amenity – view loss – height standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Yolanda Camuglia (Applicant) North Sydney Council (Respondent) Representation: Counsel: N Sandstrom (Solicitor) (Applicant) K Gerathy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 19/268493 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 55/19 by North Sydney Council (hereafter the Council), which as amended, seeks the demolition of existing structures, and construction of a six storey residential flat building for five apartments with car stacker, works to an existing seawall and pool, landscaping and stormwater works on Lot 2 DP 167089, also known as 5 Bay View Street, Lavender Bay (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 August 2020. I presided over the conciliation conference. There were no objectors whom raised issue during notification or spoke at this conciliation. However, the Court acknowledges that a number of residents spoke at a previous conciliation of this appeal, in response to objections made during the notification period. 4. Prior to this conciliation conference, and following expert discussion, the applicant amended the supporting plans and documents to the DA, which includes the cl 4.6 written request seeking variation of the height development standard, to be relied upon in the granting of consent to the DA under appeal. Leave is granted by the Court, unopposed by the respondent, to amend the DA under appeal. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues previously raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 55/19 with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 55/19 with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance to the Court to be satisfied to grant consent in these proceedings, pursuant to s 4.15 of the EPA Act, as consistency with the: Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and North Sydney Local Environmental Plan 2013 (NSLEP). In addition, the North Sydney Development Control Plan 2013 (NSDCP) is of consideration to grant consent to the DA. 8. The parties agree that the DA relies on existing use rights for the construction of the proposed residential flat building (RFB), pursuant to Division 4.11 of the EPA Act and Part 5 of the EPA Reg. The site has an existing RFB that is proposed to be replaced by a newly constructed RFB over a similar building envelope. 9. In compliance with the requirements of SEPP 65, the DA is supported by amended plans and the conditions of consent which address the relevant requirements for consideration. The proposed development provides appropriate design quality and amenity, and has had regard to the requirements of SEPP 65 and the Apartment Design Guide (ADG). The parties agree that the requirements of the SEPP 65 are satisfied, which resolves the relevant contentions. 10. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 11. The site is located within the R3 Medium Density Residential Zone, as described in the NSLEP. The proposed development is not permissible in the zone, however benefits from existing use rights as described previously. The parties agree that the relevant provisions of the NSLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are also satisfied. 12. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the NSLEP. All other relevant numeric development standards are satisfied. 13. It is accepted by the parties that a cl 4.6 written request for variation of the height standard is required to grant consent to the DA, pursuant to cl 4.6 of the NSLEP, and that the Court must be satisfied of its consistency with cl 4.6 to grant consent to the DA. 14. The written request for (height) variation explains that the maximum height of the proposed development shown in the amended plans is 10.454m, which exceeds the NSLEP (cl 4.3) height standard of 8.5m by 1.954m. This exceedance in height is primarily limited to the roof form in the central portion of the site. 15. The cl 4.6 (height) written request explains that the site has been excavated beyond its original natural form to accommodate historic developments, including the existing building on the site. The elements of the buildings that result in an exceedance in the height standard do not result in a development that is out of character with the local area and is not perceived adversely from the streetscape. The proposed development responds to the existing development on and adjoining the site and the sloping topography, and relies on the existing built form, including its height. The portions of the proposed development that potentially may impact adjoining residents view are actually height compliant elements that are consistent with the existing building height. Therefore, the non-compliant height elements do not impact amenity of adjoining residents, and there are sufficient environmental planning grounds for a variation in height. 16. According to the written request, there are no adverse impacts to visual bulk, view loss, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The proposed development is consistent with the zone objectives or relevant development standard. The portions of the non-compliant building form are not readily discernible in the context of the site, and compatible with immediately adjoining building heights. 17. The proposed height of the development satisfies the objectives of the zone and the height standard. As the non-compliant portion of the proposed development is in character with the local area, results in no adverse amenity impacts and satisfies the relevant height objectives, compliance with the height standard would be both unreasonable and unnecessary. 18. The (cl 4.6) written request considers that a variation of the height development standard, pursuant to cl 4.3 of the NSLEP is therefore satisfied, and flexibility of the standard is justified. There is no public benefit in maintaining the height standard on the site, as the proposed development is consistent with the character, bulk and scale of the surrounding context. 19. Having reviewed the (cl 4.6) written request, I agree that the written request for variation of the height standard addresses the requirements of cl 4.6(3) of the NSLEP by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the NSLEP is satisfied. 20. The proposed development as described to the Court is consistent with the objectives of the zone (cl 2.3 for R3 zone) and the height (cl 4.3) standard, as established in the NSLEP. The breach in height is limited to portions of the roof that will not cause undue concern to surrounding residents, including view loss, or those on the site. The height non-compliance does not result in adverse impact to the residents of the proposed development, adjoining properties or the character of the local area. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii). 21. I accept the cl 4.6's explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the standard for the proposed development. The proposed development is consistent in height with the existing building on the site and with immediately adjoining buildings. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) of the EPA Act. 22. I am satisfied that the requirements of cl 4.6 of the NSLEP have been addressed and that a variation in the height standard, as provided in cl 4.3, should be granted. 23. It is noted that the cl 4.6 written request for height variation seeks a greater variation than is granted in this consent, under condition A2. By agreement of the parties, the conditions of consent, specifically A2 in Annexure A of the DA, effectively reduces the height variation that is approved to 15.58%, equivalent to a maximum height variation of 1.324m. This is accepted by the Court as the maximum height variation for the proposed development granted under this consentIt is accepted that based on the explanation of the parties the approved height variation further addresses any potential view loss from adjoining properties, which resolves relevant objector submissions. The Court is satisfied that a variation in the height development standard should be approved, based on satisfaction of cl 4.6 of the NSLEP, however the proportion of height variation that is granted in this consent is determined by the conditions of consent, specifically A2. 24. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the NSDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans, together with the conditions of consent address any potential amenity impacts that would warrant refusal of the DA. 25. The parties agree that the requirements of the NSDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the NSDCP. During the notification period for the amended plans, six submissions were received by Council. The Council considers that the issues raised in these submissions are satisfactorily resolved. 26. Based on the amended plans and supporting documents to the DA including a (cl 4.6) written request for variation of the height development standard, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. 27. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 55/19 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 28. 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. 29. The Court orders that: 1. Leave is granted for the Applicant to rely on the amended plans, drawings and materials as referred to in condition A1 of the conditions of consent at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $11,631.90 payable within 14 days of this agreement. 3. The applicant is granted leave to rely on the amended written request under clause 4.6 of the North Sydney Local Environmental Plan 2013, prepared by Mersonn and dated April 2020, seeking a variation of the development standard for height under clause 4.3 of the North Sydney Local Environmental Plan 2013. 4. The applicant's amended written request under clause 4.6 of the North Sydney Local Environmental Plan 2013, prepared by Mersonn and dated April 2020, seeking a variation of the development standard for height under clause 4.3 of the North Sydney Local Environmental Plan 2013 is upheld. 5. The appeal is upheld. 6. Development consent is granted to development application no. DA55/19 for demolition of existing structures, alterations to the existing swimming pool, construction of a new residential flat building containing three units and a new garage structure, excavation of the site and associated works at 5 Bay View Street, Lavender Bay is approved subject to the conditions in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (453403, pdf) ********** 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: 03 September 2020