McCrae v North Sydney Council [2020] NSWLEC 1667

Land and Environment Court New South Wales

Medium Neutral Citation: McCrae v North Sydney Council [2020] NSWLEC 1667 Hearing dates: Conciliation conference listing 18 December 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [21] Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between 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 55 – Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: North Sydney Development Control Plan 2013 Category: Principal judgment Parties: David McCrae (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) J-Corradini-Bird (Solicitor) (Respondent)

Solicitors: Storey & Gough (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/197275 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal concerns a modification application brought before the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 ('EPA Act') in relation to the deemed refusal by the North Sydney Council ('Council') of Modification Application No. 237/19/2 ('MA'). 2. The MA is seeking to modify development consent 237/19 which was issued on 10 January 2020 for development described as "[a]lterations and additions including a first-floor addition [to an existing semi-detached dwelling] in a Conservation Area" (the Development Consent). The subject land is at 7 Carr Street, Waverton ('site'). 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), listed for 18 December 2020. I presided over the conciliation conference. 4. Prior to the conciliation conference, the parties provided evidence that an agreement, under s 34(3) of the LEC Act, had been reached between them. The decision agreed by the parties is for leave to be granted to amend the MA, and for the grant of development consent subject to conditions. 5. 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. 6. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties provided a statement outlining jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (received by email dated 17 December 2020). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below.