Land and Environment Court New South Wales Medium Neutral Citation: Mehrgardt v North Sydney Council [2022] NSWLEC 1284 Hearing dates: Conciliation conference on 17-18 May 2022 Date of orders: 06 June 2022 Decision date: 06 June 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA18/21, for the demolition of existing building and construction of a new dwelling house and associated landscaping on land legally described as Lot 1 in DP726071, known as 1 Bank Lane, North Sydney NSW 2060, is determined by the grant of consent subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION – dwelling house development in heritage conservation area – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55, cl 2A of Part 1, Sch 1 Land and Environment Court Act 1979, ss 34, 34AA North Sydney Local Environmental Plan 2013, cll 5.10, Sch 5 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Category: Principal judgment Parties: Philip Mehrgardt (Applicant) North Sydney Council (Respondent) Representation: Counsel: J Reid (Applicant) H Irish (Respondent) Solicitors: Swaab (Applicant) Matthews Folbigg Lawyers (Respondent) File Number(s): 2022/39548 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant in these proceedings seeks consent to demolish an existing weatherboard cottage at No 1 Bank Lane, North Sydney, including its sandstone base, paving and outbuilding to permit the construction of a two-storey dwelling and single carport, and cross-over to Bank Lane. 2. To this end, Development Application DA18/21 was lodged with North Sydney Council on 14 January 2021, and was subsequently refused by the North Sydney Local Planning Panel. 3. On 10 February 2022, the Applicant brought this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The appeal was listed for mandatory conciliation on 17 May 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. 5. On the basis of certain amendments discussed between the parties, I adjourned the conciliation conference until the next day, 18 May 2022, to permit the preparation of amended plans. 6. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 May 2022. 8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 9. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [21]. 10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 11. The site is located within the R2 Low Density Residential zone in accordance with the North Sydney Local Environmental Plan 2013 (NSLEP), in which dwelling house development is permitted with consent, where consistent with the following objectives of the R2 zone: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. 1. While the site itself is not listed for its heritage significance, it is located within the Union, Bank and Thomas Street Heritage Conservation Area (the HCA) and is in the vicinity of adjoining and nearby sites at Nos 3 and 5 Ancrum Street, No 18 Bank Street and No 2C Union Street identified in Schedule 5 of the NSLEP for their heritage significance at a local level. 2. A Statement of Significance for the HCA is contained at Part C, Section 9.10.3 of the North Sydney Development Control Plan 2013 (NSDCP) in the following terms: "The Union, Bank, Thomas Street Conservation Area is significant: (a) As the largest area of mid to late Victorian buildings in the North Sydney area including a substantial number of individually significant buildings, groups of buildings and unique streetscapes in the local context. (b) For the clarity of its subdivision history that is still clearly seen in variations of road widths between sections of streets and changes of directions of the subdivision pattern in response to the subdivision of earlier estates. (c) For the way development has responded to the topography through stepped building forms and excavation in some locations. (d) For its fine streetscapes with intact rows of Victorian residences, especially in Thomas, Union and Chuter Streets. (e) For its relatively large number of surviving timber residences." 1. On the basis of the Statement of Heritage Impact prepared by Cracknell & Lonergan Architects dated 22 September 2021, the amendments evident in the amended architectural plans, and the report prepared by Weir Philips titled 'Supplementary Report: Alternatives to demolition of the contributory item in relation to the relevant objectives and provisions of Clause 13.8 Demolition of the NSDCP 2013', dated 18 May 2022, I accept the proposed development is sympathetic to the context and significance of the HCA as set out at [13], in accordance with cl 5.10 of the NSLEP. State Environmental Planning Policy No 55 – Remediation of Land 1. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), the requirements of which were transferred on 1 March 2022 to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP), I have given consideration to the potential contamination of the land. 2. I have considered the history of the site contained in the Heritage Impact Statement prepared by Cracknell & Lonergan Architects, and I accept that the site has a post-settlement history defined by residential use, as do surrounding properties in the immediate vicinity, and that there is no evidence to suggest contamination on the site, pursuant to cl 7 of SEPP 55. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1164547S_03, dated 19 May 2022) prepared by LC Consulting Engineers in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and cl 2A of Part 1, Schedule 1 of the EPA Regulation. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. North Sydney Council, as the relevant consent authority, has agreed pursuant to cl 55 of the EPA Regulation, to amend Development Application No. DA18/21, with the amended plans and documents uploaded on the NSW Planning Portal on 18 May 2022 and 19 May 2022 and filed with the Court on 20 May 2022 as described in Annexure A. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA18/21, for the demolition of existing building and construction of a new dwelling house and associated landscaping on land legally described as Lot 1 in DP726071, known as 1 Bank Lane, North Sydney NSW 2060, is determined by the grant of consent subject to the conditions at Annexure B. ………………….. T Horton Commissioner of the Court Annexure A (38504, pdf) Annexure B (406868, 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 June 2022