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. Jurisdictional considerations Environmental Planning and Assessment Act 1979 1. I accept the advice of the parties that the MA was made with the consent of the owner of the site, Mrs Mi Ra Bae. 2. In relation to the jurisdictional prerequisite contained in s 4.55(2)(a), and having considered the substance of the modification including plans and conditions, I accept the agreement of the parties that the modified development is substantially the same development for which consent was originally granted. The resulting modified development does not result in a development that is substantially different, either qualitatively or quantitatively. 3. In relation to s 4.55(2)(c) of the EPA Act, I accept the advice of the parties that the MA was notified in accordance with the requirements of the EPA Act, Environmental Planning and Assessment Regulation 2000 ('EP&A Regulation') and Council's Development Control Plan and Community Participation Plan, and that no submissions were received by Council. 4. In relation to s 4.55(3) of the EPA Act, the heads of consideration under s 4.15 of the EPA Act will be addressed below. The reasons given for the grant of consent and for the imposition of the deferred commencement condition as set out in the Respondent's Notice of Determination dated 10 January 2020 were as follows: "The development is sufficiently compliant to be supportable in this [sic] circumstances. The deferred commencement condition is recommended to require the proposed first floor south facing windows and study to be deleted from the proposal. The deferred commencement condition is recommended in order to address concerns relating to the form, scale of the proposed first floor as well as ensuring greater consistency with the character statement for the Union, Bank and Thomas Conservation Area." 1. The parties agree that the modified development proposed by the MA is consistent with the reasons stated above. North Sydney Local Environmental Plan 2013 (LEP 2013) and North Sydney Development Control Plan 2013 1. I accept the advice of the parties that: 1. The proposed development (a semi-detached dwelling house) is permissible with consent within the R2 Low Density Residential zone. 2. The proposed development does not offend a principal development standard within Part 4 of LEP 2013. 3. The subject property is within the 'Union, Bank and Thomas Street Heritage Conservation Area' listed in Schedule 5 of LEP 2013. Having considered the context, I accept the advice of the parties that the proposed development would not have an adverse impact on the heritage significance of the conservation area: cl. 5.10(4) of LEP 2013. 4. The remaining provisions of Part 5 – Miscellaneous provisions and the provisions of Part 6 – Additional local provisions of LEP 2013 are not relevant to the proposed development or subject property. 5. The remaining provisions of Part 5 and Part 6 of LEP 2013 are not relevant to the proposed development or subject property. State Environmental Planning Policy (Building Sustainability Index – BASIX) 2004 1. An updated BASIX Certificate No. A344103 dated 16 November 2020 has been prepared. A condition is included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX Certificate as required by cl 97A of the EP&A Regulation. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) 1. The parties note that the assessment report prepared in relation to Development Application No. 237/19 stated that "[g]iven the residential history of the site, [there] is unlikely to be any issues of soil contamination that would require remediation." I am satisfied that the requirements of cl 7(1) of SEPP 55 have been satisfied. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP (Sydney Harbour Catchment)) 1. The site is within the Sydney Harbour Catchment referred to in cl 3 of SREP (Sydney Harbour Catchment). 2. The parties advise that the assessment report prepared in relation to Development Application No. 237/19 stated that "the development is minor in nature and not readily visible from the Harbour, and will thus not have any detrimental impact on the character or scenic quality of foreshores and waterways." 3. The site is not within the Foreshore and Waterways Area or shown on the Strategic Foreshore Sites, Heritage, Sydney Opera House Buffer Zone or Wetlands Protection Maps associated with SREP (Sydney Harbour Catchment). Other Environmental Planning Instruments 1. I accept the agreed position of the parties that no other environmental planning instruments contain jurisdictional prerequisites in respect of which the Court is required to be satisfied in relation to the MA. Conclusion 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders that: 1. The Applicant is granted leave to amend the modification application by substituting the following plans and documentation, annexed hereto and marked "A", as the plans and documentation relied upon for the purpose of the modification application: Plan No. Revision Title Drawn by Dated - - COVER mm+J Architects 19.11.2020 DAL01 B LOCALITY & SITE ANALYSIS PLAN mm+J Architects 19.11.2020 DAL02 C SITE PLAN / STORMWATER PLAN mm+J Architects 19.11.2020 DAL03 B AREA CALCULATIONS mm+J Architects 19.11.2020 DAL04 B LANDSCAPE - SEDIMENT & EROSION CONTROL PLAN mm+J Architects 19.11.2020 DAL05 A DEMOLITION PLANS mm+J Architects 19.11.2020 DAL06 A LOWER GROUND FLOOR PLAN mm+J Architects 19.11.2020 DAL07 C GROUND FLOOR PLAN mm+J Architects 19.11.2020 DAL08 B FIRST FLOOR PLAN mm+J Architects 19.11.2020 DAL09 C SECTIONS mm+J Architects 19.11.2020 DAL10 A NORTH & SOUTH ELEVATIONS mm+J Architects 19.11.2020 DAL11 A EAST & WEST ELEVATIONS mm+J Architects 19.11.2020 DAL13 C 3D EXTERNAL VIEWS 01 mm+J Architects 19.11.2020 DAL14 A 3D EXTERNAL VIEWS 02 mm+J Architects 19.11.2020 DAL15 C 3D EXTERNAL VIEWS 03 mm+J Architects 19.11.2020 DAL16 B 3D EXTERNAL VIEWS – ROOF 01 mm+J Architects 19.11.2020 DAL17 A 3D EXTERNAL VIEWS – ROOF 02 mm+J Architects 19.11.2020 DAL18 A 3D EXTERNAL VIEWS – SHADING DEVICES mm+J Architects 19.11.2020 DAL19 A FLASHING DETAIL mm+J Architects 19.11.2020 DAL20 A 3D EXTERNAL VIEWS FRONT mm+J Architects 19.11.2020 DAL21 B 3D EXTERNAL VIEWS FROM FOOTPATH mm+J Architects 19.11.2020 DAL22 B ADDITIONAL SECTIONS mm+J Architects 19.11.2020 DAL23 A WINDOW SCHEDULE mm+J Architects 19.11.2020 DAL30 B SHADOW DIAGRAMS – 21ST JUNE – 9AM mm+J Architects 19.11.2020 DAL31 B SHADOW DIAGRAMS – 21ST JUNE – 12PM mm+J Architects 19.11.2020 DAL32 B SHADOW DIAGRAMS – 21ST JUNE – 3PM mm+J Architects 19.11.2020 DAL33 B SHADOW DIAGRAMS – 21ST SEPTEMBER – 9AM mm+J Architects 19.11.2020 DAL34 B SHADOW DIAGRAMS – 21ST SEPTEMBER – 12PM mm+J Architects 19.11.2020 DAL35 B SHADOW DIAGRAMS – 21ST SEPTEMBER – 3PM mm+J Architects 19.11.2020 DAL36 B SHADOW DIAGRAMS – 21ST DECEMBER – 9AM mm+J Architects 19.11.2020 DAL37 B SHADOW DIAGRAMS – 21ST DECEMBER – 12PM mm+J Architects 19.11.2020 DAL38 B SHADOW DIAGRAMS – 21ST DECEMBER – 3PM mm+J Architects 19.11.2020 DAL39 A ELEV. SHADOW DIAGRAMS – WINTER SOLSTICE 01 mm+J Architects 19.11.2020 DAL40 A ELEV. SHADOW DIAGRAMS – WINTER SOLSTICE 02 mm+J Architects 19.11.2020 DAL41 A ELEV. SHADOW DIAGRAMS – WINTER SOLSTICE 03 mm+J Architects 19.11.2020 DAL42 A ELEV. SHADOW DIAGRAMS – WINTER SOLSTICE 04 mm+J Architects 19.11.2020 DAL43 A ELEV. SHADOW DIAGRAMS – SUMMER SOLSTICE 01 mm+J Architects 19.11.2020 DAL44 A ELEV. SHADOW DIAGRAMS – SUMMER SOLSTICE 02 mm+J Architects 19.11.2020 DAL45 A ELEV. SHADOW DIAGRAMS – SUMMER SOLSTICE 03 mm+J Architects 19.11.2020 DAL46 A ELEV. SHADOW DIAGRAMS – SUMMER SOLSTICE 04 mm+J Architects 19.11.2020 L.SK.01 D Landscape Sketch Plan Scape Design 19.11.2020 L.SK.02 D Landscape Planting Plan Scape Design 19.11.2020 Document Prepared by Dated BASIX Certificate No. A344103_04 MM+J Architects 16.11.2020 1. The appeal is upheld. 2. Development No DA237/19, originally granted by the Respondent on 10 January 2020, for alterations and additions to the existing semi-detached dwelling on the land at 7 Carr Street, Waverton (Lot X in DP 408962) is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "B". 3. As a consequence of Order 2.3, Development Consent No. DA237/19 (as modified) is subject to the consolidated modified conditions set out in Annexure "C". ………………………. Peter Walsh Commissioner of the Court Annexure A (11870177, pdf) Annexure B (148701, pdf) Annexure C (343961, 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: 22 December 2020