Land and Environment Court New South Wales Medium Neutral Citation: Cascinda 88 Pty Ltd v North Sydney Council [2024] NSWLEC 1494 Hearing dates: Conciliation conference held 10 May, 7 June, 16 July, 26 July 2024 Date of orders: 15 August 2024 Decision date: 15 August 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA235/2023 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The appeal is upheld. (4) Consent is granted to Development Application DA235/2023 (as amended) for demolition of existing structures, boundary adjustment and construction of a pair of semi-detached dwellings and new landscaping at 32 Darley Street, Neutral Bay, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – semi-detached residential dwellings – cl 4.6 written request – height of buildings – minimum lot size – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 North Sydney Local Environmental Plan 2013, cll 2.3, 4.1, 4.3, 4.6, 5.10, 5.21, 6.10 Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020 Category: Principal judgment Parties: Cascinda 88 Pty Ltd (First Applicant) BMV Neutral Bay Pty Ltd (Second Applicant) North Sydney Council (Respondent) Representation: Counsel: A Sattler (Solicitor) (Applicants) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Sattler and Associates (Applicants) Marsdens Law Group (Respondent) File Number(s): 2023/327113 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Cascinda 88 Pty Ltd (the Applicant), against the deemed refusal of Development Application DA235/2023 (the DA) by North Sydney Council (the Respondent). At the time of its lodgement on 31 July 2023, the DA sought consent for demolition of existing structures, boundary adjustments of existing lots, construction of a pair of semi-detached dwellings and new landscaping, including tree removal, at 32 Darley Street, Neutral Bay (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 May, 7 June, 16 July and 26 July 2024. I presided over the conciliation conference. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of unsympathetic relationship to nearby listed heritage items, inconsistency with the objectives of the R2 Low Density Residential land use set out in the North Sydney Local Environmental Plan 2013 (NSLEP), inconsistency with the development standards for minimum lot size and height of building, inadequate response to flood planning requirements, inappropriate built form and streetscape character, dominance of onsite car parking, unacceptable extent of tree removal, and excessive overshadowing impacts on neighbouring dwellings, amongst other contentions. 5. Agreed design amendments have been made to improve the DA's relationship to the site, its context, and the existing heritage character of Darley Street. Changes have been made to retain a greater number of existing trees and to increase building separation with the western neighbour, thereby reducing overshadowing and cross viewing impacts. These agreed amendments also have the effect of reducing the visual dominance and impacts of proposed on-site parking. Additionally, the agreed conditions of consent result in the creation of an on street car space that would otherwise not be achieved. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 9. The DA was publicly notified from 18 August 2023 to 1 September 2023. A total of five submissions were received by the Respondent raising concerns with: 1. Adverse impacts upon adjoining heritage items, 2. Excessive building bulk and scale, 3. Misrepresentation of neighbouring properties on plans, 4. Overshadowing impacts on neighbouring dwellings, 5. Tree loss, 6. Inappropriate streetscape character, 7. Loss of on-street parking, 8. Visual privacy and cross viewing impacts, and 9. Potential impact on the structural integrity of adjoining properties. 1. A number of these concerns were reflected in the Respondent's contentions and were discussed during the conciliation process. 2. The amended DA was re-notified and a further three submissions were received by the Respondent raising issues including the reduced number of on street parking spaces available as a result of the amended DA. An agreed condition of consent is now imposed, which requires adjustment of the driveways to retain an additional on street parking space. 3. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. 4. The parties agree, and I am satisfied, that the North Sydney Local Environmental Plan 2013 (NSLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The amended DA - characterised as semi-detached dwellings - is permissible with consent within the R2 zone. 5. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the NSLEP, the amended DA is consistent with the relevant R2 Low Density Residential zone objectives, which include: * 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. The parties agree, and I am satisfied, that all principal development standards of the NSLEP have been met by the amended DA, with the exception of cl 4.1 - Minimum subdivision lot size - and cl 4.3 - Height of buildings. 2. In such an instance, cl 4.6(3) of the NSLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 3. Clause 4.6(4) of the NSLEP requires the consent authority to be satisfied that the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 4. Additionally, cl 4.6(4)(b) of the NSLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter. 5. As required by cl 4.6 of the NSLEP, the Applicant has provided two written requests, seeking to vary the minimum subdivision lot size and height of buildings development standards respectively, each prepared by Minto Planning Services and dated 3 June 2024. 6. Dealing firstly with minimum lot size, the amended DA proposes subdivision to create two Torrens title lots reflecting the proposed development of two semi-detached dwellings. 7. The site currently comprises two Torrens title lots, with each existing lot being slightly less than the minimum 450sqm lot size mapped pursuant to cl 4.1 of the NSLEP. In order to achieve closer congruity of areas, a boundary adjustment is proposed where the existing common boundary is to be moved to the west. 8. The existing lot at 32 Darley Street is 413.4sqm representing an existing variance to the development standard of 8.14%. The existing lot at 32A Darley Street is 336sqm representing an existing variance to the development standard of 18.67%. 9. The proposed subdivision at 32 Darley Street will result in a lot size of 383sqm (a 15% variation). The proposed subdivision at 32A Darley Street will result in a lot size of 396.6sqm (a 11.15% variation). 10. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to minimum subdivision lot size development standard for the following reasons: 1. Being the movement of an internal boundary, the parties agree that there will be no impact on any other neighbouring property or the public domain. 2. The proposed boundary adjustment involves the existing common boundary between the two lots being relocated 736mm to the west. Such a variation is agreed to be a minor adjustment. 3. The proposed boundary adjustment will generally maintain the existing subdivision pattern, lot sizes and shapes and accommodates the proposed development in a manner agreed to be consistent with the desired future character of the locality. 4. The objectives of the NSLEP Zone R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment, 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, and to ensure that a high level of residential amenity is achieved and maintained. I am satisfied the amended DA meets these objectives. 5. The objectives of cl 4.1 of the NSLEP are to ensure that the subdivision and associated development promotes the desired future character of the neighbourhood through consistent lot size, shape, orientation and housing density; to maintain a mix of dwelling sizes and affordable accommodation; to prevent fragmentation of land, which would prevent the achievement of the extent of development and nature of uses envisioned for particular locations; to minimise any likely impact of subdivision and development on the amenity of neighbouring properties; and to ensure that lot sizes allow buildings to be sited to protect natural or cultural features, including heritage items, and retain special features, such as trees and views. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the minimum subdivision lot size development standard, and I find to uphold the written request. 2. Secondly, the amended DA proposes a maximum building height of 9.65m, exceeding the relevant height of building development standard of 8.5m by 1,150mm and representing a variation of approximately 14%. 3. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons: 1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the Darley Street locality, including being compatible with the form and scale of nearby heritage listed dwellings. 2. The breach of height arises from the proposed gable roofs, which are designed at a pitch that is consistent with the other dwellings in Darley Street. 3. The ground floor of both semi-detached dwellings are elevated sufficiently to allow overland flow stormwater to pass below and therefore mitigate against flooding or affectation upon neighbouring properties. 4. The proposed height exceedance evident in the amended DA does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. 5. As noted earlier in this judgment, I am satisfied the amended DA meets the objectives of the NSLEP Zone R2 Low Density Residential land use zone. 6. The objectives of cl 4.3 of the NSLEP include to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient; to promote the retention and, if appropriate, sharing of existing views; to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development; to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings; to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area; and to maintain a built form of mainly one or two storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living. I am satisfied the amended DA meets these objectives. 1. Consequently, I am satisfied the Applicant's cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request. 2. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the NSLEP - Heritage conservation - the existing building on the site is not a listed heritage item, nor is the site located within a heritage conservation area (HCA). However, the site is within close proximity to 23 listed heritage items making up a significant number of dwellings in Darley Street. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage items or HCA. 3. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the NSLEP - Flood planning - the site is located within a Flood Planning Area on the Flood Planning Map. 4. The amended DA has been designed with an elevated ground floor for both dwellings to permit overland flow to pass unobstructed, and the development is agreed to not adversely affect flood behaviour. 5. Accordingly, I am satisfied, that the amended DA and agreed conditions of consent appropriately address the relevant matters set out in cl 5.21(2) of the NSLEP. 6. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.10 of the NSLEP - Earthworks. The amended DA proposes earthworks that are agreed not to be significant, comprising pier footings to support each dwelling and the filling of the existing swimming pool. I am satisfied amended DA appropriately addresses the matters set out at cl 6.2(3). 7. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards. 8. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. 9. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment, but the amended DA will not result in any negative impact on the catchment or waters of Sydney Harbour. 10. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Consistent with SEPP BASIX and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No 1397102M_02, dated 19 June 2024 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. 11. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 12. The Court notes that: 1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent. 2. The Applicant has lodged the amended DA with the Court on 26 July 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA235/2023 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to Development Application DA235/2023 (as amended) for demolition of existing structures, boundary adjustment and construction of a pair of semi-detached dwellings and new landscaping at 32 Darley Street, Neutral Bay, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court 327113.23 Annexure A 327113.23 Architecture plans ********** 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: 15 August 2024