Land and Environment Court New South Wales Medium Neutral Citation: Neilson v North Sydney Council [2022] NSWLEC 1647 Hearing dates: Conciliation conference on 19 October 2022 Date of orders: 23 November 2022 Decision date: 23 November 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application DA361/21 for alterations and additions to the entire existing dwelling including demolition and reconstruction of the top floor and construction of a secondary dwelling (carer's suite) within the lower ground floor at 6 Warung Street, McMahons Point subject to the conditions in Annexure B to these orders. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to dwelling house in R2 Low Density Residential zone – 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 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 5.10. 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: William Kerr Stephen Neilson (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Hemmings (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Hall & Wilcox (Respondent) File Number(s): 2022/141240 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by North Sydney Council (the Respondent) of development application DA361/21 for alterations and additions to the existing dwelling house at No.6 Warung Street, McMahons Point (the site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 19 October 2022. I presided over the conciliation conference. 3. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 8 November 2022. 5. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement. 6. 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. 7. There are jurisdictional prerequisites contained in the provisions of the following: 1. North Sydney Local Environmental Plan 2013 (NSLEP). 2. State Environmental Planning Policy (Resilience and Hazards) 2021. 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 1. The parties explained to me during the conference how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [27]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out in my judgment below. 2. The site is located within the R3 Medium Density Residential Zone pursuant to the NSLEP, in which development for the purpose of a dwelling house is permitted with consent, where consistent with the objectives of the R3 zone as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To provide for a suitable visual transition between high density residential areas and lower density residential areas. • To ensure that a high level of residential amenity is achieved and maintained. 1. The proposed development exceeds the maximum building height of 8.5m applicable to the site at cl 4.3(2) of the NSLEP. A written request prepared by Ingham Planning dated October 2021 accompanies the development application. 2. The written request explains that the existing dwelling at No. 6 Warung Street, constructed prior to the current controls, already exceeds the height of building standard, measuring a maximum height of 14.34m above existing ground level. 3. The proposal will result in a reduction of 2.4m in height from the existing maximum height. 4. The written request asserts that compliance with the height standard is unreasonable or unnecessary, as the proposal is consistent with the objectives of the standard, notwithstanding the non-compliance. 5. The objectives of the height standard are as follows: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area, (g) to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone E4 Environmental Living. 1. I accept the detailed assessment set out at pp 8-9 of the written request in support of the assertion at [13], and I am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, pursuant to cl 4.6(3)(a) of the NSLEP. 2. I am also satisfied that the grounds advanced by the written request in Section 6 are sufficient for the purposes of justifying the contravention of the height standard, pursuant to cl 4.6(3)(b) of the NSLEP. 3. I accept that the proposal achieves the objectives of the R3 zone at [9] because, notwithstanding the height exceedance, the proposal results in minimal change to the residential environment of the locality, retains the existing single detached dwelling housing form within an area comprising a variety of housing types, provides a visual transition between taller apartment buildings to the east and the lower 3 level dwellings to the west, and will improve access to expansive Harbour and district views available from the site as well as neighbouring properties. 4. As the proposed development is consistent with the objectives of the height standard and the objectives for development within the R3 zone, and because I accept that the height exceedance was, in effect, a pre-existing condition prior to the imposition of the height standard, it raises no matter of significance for State or regional environmental planning and so I am satisfied that the proposal is in the public interest, pursuant to cl 4.6(4)(a)(ii) of the NSLEP, and in respect of the Secretary's concurrence at cl 4.6(5). 5. Accordingly, I find the written request in respect of the height exceedance should be upheld. 6. The site is located within the McMahons Point Heritage Conservation Area (McMahons Point HCA) pursuant to the NSLEP. On the basis of the Heritage Impact Statement prepared by Design 5 Architects dated March 2022; the Heritage Letter of Advice prepared by Mackay Strategic Pty Ltd dated 22 March 2022; and the plans containing agreed amendments, I consider the proposal acceptable within the context of the McMahons Point HCA, pursuant to cl 5.10 of the NSLEP. 7. As the proposed development comprises earthworks, cl 6.10 of the NSLEP applies. I have considered the Civil Services Plans, prepared by JHA Engineers and the Geotechnical Assessment Report prepared by JK Geotechnics, which leads me to conclude that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, subject to the agreed conditions of consent containing Condition C7. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) 1. I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. A479389, for the main dwelling and Certificate No. Certificate No. A479393 for the secondary, or carer's dwelling), prepared by Sustain Build Projects dated 3 November 2022 in accordance with SEPP BASIX and the Environmental Planning and Assessment Regulation 2000. State Environmental Planning Policy (Resilience and Hazards) 2021 1. On the basis of the detailed chronology of development documented on the site and contained in the Heritage Impact Statement prepared by Design 5 Architects dated March 2022, I accept that the site has only been the site of this development, and is not contaminated by such uses, and in respect of which no change of use is proposed that would require a report of the kind cited in s 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021. 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. The Court notes that: 1. North Sydney Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA361/21 with the plans and documents listed in Annexure A to this Agreement; 2. The Applicant uploaded the documents set out in Annexure A onto the NSW Planning Portal on 7 November 2022. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA361/21 for alterations and additions to the entire existing dwelling including demolition and reconstruction of the top floor and construction of a secondary dwelling (carer's suite) within the lower ground floor at 6 Warung Street, McMahons Point subject to the conditions in Annexure B to these orders. …………………… T Horton Commissioner of the Court Annexure B (362924, 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: 23 November 2022