Land and Environment Court New South Wales Medium Neutral Citation: Dreric Pty Limited v North Sydney Council [2022] NSWLEC 1005 Hearing dates: Conciliation conference on 27 October 2021 Date of orders: 6 January 2022 Decision date: 06 January 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The Order made on 24 September 2021 that "the applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application as agreed or assessed" is vacated. (2) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application as agreed or assessed. (3) The Appeal is upheld. (4) The heritage management document "Heritage Conservation Strategy" prepared by Colin Israel dated 15 October 2021 is approved, subject to the conditions of consent in Annexure A. (5) Development Application No. DA8/21 for alterations and additions to the existing heritage item and use of the premises as a dwelling house in conjunction with the approved medical consulting rooms at 101 Blues Point Road, McMahons Point is approved subject to the conditions in Annexure A. Catchwords: APPEAL – development application – alterations to approved health consulting rooms and existing dwelling – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15 Environmental Planning and Assessment Regulation 2000, cll 49 and 55 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Sydney Regional Environmental Planning (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Dreric Pty Limited (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Staunton (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Sattler and Associates Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/101973 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) for alterations and additions to an existing heritage item in McMahons Point and the use of the premises as a dwelling house in conjunction with previously approved medical consulting rooms. The Council reference is DA 8/21. 2. The land the subject of the DA is described as Lot 1 DP 216475 and is known as 101 Blues Point Road, McMahons Point (Site). The Site is located on the north-eastern corner of Blues Point Road and East Crescent Street and contains a sandstone cottage and an attached shop, which is already approved to be used for medical consulting rooms. 3. The DA was amended by the Applicant with the agreement of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) on 24 September 2021. The DA was further amended with the agreement of the Council shortly prior to the hearing. The Applicant uploaded the further amended application to the NSW Planning Portal on 20 and 26 October 2021 and the further amended proposal was then filed with the Court on 24 October 2021. The Council has re-notified the further amended plans and documents during the period between 20 October 2021 and 3 November 2021. 4. The DA in its final form seeks development consent for alterations and additions to the existing heritage item on the Site and the use of the premises as a dwelling house in conjunction with the approved medical consulting rooms (Proposed Development). The Proposed Development involves the following: 1. Garage level: 1. alterations and additions to the existing garage level; 2. new internal stair from the garage level to the ground floor level; 3. new bin storage area; and 4. new laundry. 1. Ground floor: 1. internal alterations and additions to approved medical consulting rooms; 2. alterations and additions to the existing heritage item to provide for three bedrooms, two bathrooms, and kitchen with pantry, open plan living and dining; and 3. entry and stairs from East Crescent Street. 1. External works: 1. new rendered finish to the existing external walls; 2. new timber door and window openings concrete driveway; 3. minor external landscape works to provide for additional garden area to the East Crescent Street frontage; and 4. new front fence with pedestrian and driveway entry gates to East Crescent Street. 1. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 3. At the commencement of the hearing on 27 October 2021 the parties indicated that discussions between them had resolved all but one issue. At the parties' request, the hearing was adjourned to enable those discussions to continue. Upon being informed that the parties had resolved the outstanding issue, the matter was listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which also took place on 27 October 2021. At the conciliation conference an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed with the Court on 20 December 2021 and is supported by an Agreed Statement of Jurisdictional Prerequisites prepared by the parties which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions pursuant to s 4.16(1) of the EPA Act. 4. Under 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. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons: 1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act. 2. The Applicant is the owner of the Site and the DA has been made in accordance with cl 49(1)(a) of the EPA Reg. 3. The Land is within Zone B1 Neighbourhood Centre under the North Sydney Local Environmental Plan 2013 (LEP). 4. Development for purpose of medical consulting rooms, being characterised as a "health services facility", is permissible on land within Zone B1 under the LEP. While development for the purpose of a dwelling house is prohibited on land within that zone, in this instance the use of the premises as a dwelling house is permitted by cl 5.10(10) of the LEP. This is discussed further below. 5. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with, the objectives of the B1 Neighbourhood Centre zone in the LEP. 6. The Proposed Development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (cl 4.4). The applicable maximum building height is 8.5m and the maximum height of the proposed development is 6.7m. The applicable maximum floor space ratio is 1:1 and the floor space ratio of the Proposed Development is 0.752:1. 7. The sandstone cottage on the Site is identified as an item of local heritage significance in Sch 5 of the LEP. The Site is also located within the McMahons Point North Conservation Area. Clause 5.10(2) of the LEP specifies circumstances in which consent is required for development involving a heritage item or on land within a heritage conservation area. Before granting consent, cl 5.10(4) provides that consideration must be given by the consent authority to the effect of the Proposed Development on the heritage significance of the heritage item or heritage conservation area. The parties agree, and I accept, that the Proposed Development will not have an adverse impact on the heritage significance of the sandstone cottage or the McMahons Point North Conservation Area. 8. Clause 5.10(10) of the LEP provides as follows: (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that— (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. 1. The Applicant has provided a heritage management document in the form of a Conservation Management Strategy prepared by Colin Israel which was filed on 24 October 2021. The Applicant says that this strategy, the Statement of Environmental Effects filed on 24 October 2021 and the agreed conditions of consent enable the Court to be satisfied of the matters identified in cl 5.10(10)(a)-(e) above. The Council agrees, and I accept, that these matters are satisfied, subject to the imposition of the agreed conditions of consent. As such, the Court can grant consent for the proposed alterations and additions to the sandstone cottage even though a "dwelling house" would otherwise be prohibited under the LEP. 2. Clause 6.10(3) of the LEP provides that, before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that subclause. The parties agree, and the Court accepts, that the Geotechnical Report prepared by Ascent Geotechnical Consulting and filed on 24 October 2021 addresses all of the relevant matters listed in cl 6.10(3) and I have taken these matters into consideration in the determination of the DA. 3. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. The Site has been used for residential purposes and low impact retail and business purposes for many years. I am satisfied the Site is therefore unlikely to be contaminated and is suitable for the Proposed Development. 4. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate A436306_03, prepared by GRS Building Reports, dated 19 October 2021 was submitted with the amended DA. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met. 5. The Sydney Regional Environmental Planning (Sydney Harbour Catchment) 2005 (SREP) applies to the Site but does not impose any jurisdictional prerequisites for the granting of development consent to the DA. 6. The Lavender Bay Railway Tunnel runs immediately under the Site and the DA was referred to the Rail Authority (Sydney Trains) pursuant to cl 86 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). Sydney Trains has given its concurrence to the granting of development consent subject to conditions and these are now included in the proposed conditions of consent. 7. The Council's Statement of Facts and Contentions indicates that the DA was publicly notified between 22 January and 5 February 2021 and that eleven submissions were received by the Council during the notification period. The submissions raised matters relating to adverse impact on the heritage item, detrimental impact on streetscape, privacy impacts from first floor balcony (which is now deleted), adverse ventilation and solar access impacts on adjoining residents, non-compliance with set-back controls, use of party walls, site coverage, driveway width, intensification of use, limited parking, removal of trees and permissibility of first floor addition. 8. The Court heard oral evidence from Mr Bernard Smith. Mr Smith is the Treasurer of Strata Plan 57866 which comprises the building at 103-113 Blues Point Road, McMahons Point, and which adjoins the Site. Mr Smith spoke on behalf of the owners of units in that building and said that he had three major concerns. These related to the structural adequacy of the party wall, the lack of engineering details for excavation associated with the Proposed Development and the adverse visual impact that he said would result from the Proposed Development from the upper floor of his building. 9. As I noted at [3], the further amended DA was re-notified during the period between 20 October 2021 and 3 November 2021. Four objections were received. These raise concerns about the late amendment of the DA and the extent of the changes made to the Proposed Development, amenity impacts on the adjoining property at 103-113 Blues Point Road including the need for protection of the party wall, a perceived lack of engineering detail and adverse visual/ventilation effects, the extent of excavation proposed and a lack of sufficient information to assist residents to assess the impacts of the Proposed Development. 10. I accept the parties' agreed position that the amended DA and conditions of consent satisfactorily address the issues raised by the objectors to the extent that this is possible and reasonable. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. North Sydney Council, as the relevant consent authority has, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 has agreed to the amendment of development application DA8/21 to incorporate the following amended plans, Heritage Conservation Strategy and BASIX Certificate No.: 1. The architectural plans revision A drawn by Peter Princi architect being DA01, DA02, DA03, DA04, DA05, DA06, DA07 and DA08 - dated 15 October 2021. 2. Heritage Conservation Strategy, prepared by Colin Israel dated October 2021 3. Access report by Mark Relf, dated 19 October 2021 4. Geotechnical report prepared by Ascent Geotechnical Consulting dated 19 October 2021. 5. Schedule of finishes dated 22 October 2021 6. Amended Statement of Environmental Effects prepared by Vaughan Milligan Development Consulting Pty Ltd, dated December 2020 revised October 2021 7. Amended Basix certificate No. A436306_03 dated 19 October 2021 1. The respondent uploaded the documents set out above onto the NSW Planning Portal on 20 and 26 October 2021. 2. The Applicant filed the amended development application with the Court on 24 October 2021. 1. The Court orders that: 1. The Order made on 24 September 2021 that "the applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application as agreed or assessed" is vacated. 2. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application as agreed or assessed. 3. The Appeal is upheld. 4. The heritage management document "Heritage Conservation Strategy" prepared by Colin Israel dated 15 October 2021 is approved, subject to the conditions of consent in Annexure A. 5. Development Application No. DA8/21 for alterations and additions to the existing heritage item and use of the premises as a dwelling house in conjunction with the approved medical consulting rooms at 101 Blues Point Road, McMahons Point is approved subject to the conditions in Annexure A. ……………………… A Bradbury Acting Commissioner of the Court Annexure A (400671, 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: 06 January 2022