Land and Environment Court New South Wales Medium Neutral Citation: Stevens v North Sydney Council [2024] NSWLEC 1621 Hearing dates: Conciliation conference 9 September 2024 Date of orders: 04 October 2024 Decision date: 04 October 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld (2) Development consent is granted to development application No DA 381/2022 for alterations and additions to an existing residential dwelling including internal reconfiguration, first floor extension, new garage and associated landscape works on the land at 9 Gundimaine Avenue, Kurraba Point NSW 2089, known as Lot 2 in Deposited Plan 9797, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a residential dwelling – conciliation conference – amended plans – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.14 Fisheries Management Act 1994 Land and Environment Court Act 1979, ss 34, 34AA, 39 Water Management Act 2000 Environmental Planning and Assessment Regulation 2021, ss 23, 27, 37, 38 North Sydney Local Environmental Plan 2013, cll, 2.3, 4.3, 4.6, 5.10, 6.9, 6.10 State Environmental Planning Policy (Biodiversity nd Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.28, Pts 6.2, 6.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 2.10, 2.11, 4.6 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118. RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Texts Cited: North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Catherine Louise Mary Stevens (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Parrino (Solicitor)(Applicant) J Merlino (Solicitor)(Respondent) Solicitors: Project Lawyers (Applicant) North Sydney Council (Respondent) File Number(s): 2024/77293 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the actual refusal of development application DA 381/22. The development application seeks consent for alterations and additions to the existing detached dwelling and detached garage. The works are proposed on land identified at Lot 2 in DP 9797, known as 9 Gundimaine Avenue, Kurraba Point. 2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 9 September 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 September 2024. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. Owners consent has been obtained for the proposed development as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 2. The development application was notified by the Respondent between 13-27 January 2023. Five submissions were received in response to public notification. The amended development application was renotified. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submission. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. The land the subject of the development application benefits from a Right of Carriageway burdening the adjoining property at Lot 1 in DP 9797. The parties agree, and I accept with the benefit of the joint report of the town planning experts, that appropriate conditions of consent are to be imposed on the consent to ensure that pedestrian and vehicular access to the adjoining properties at 11 Gundimaine Avenue is provided at all times during the construction of the proposed development. 4. The proposed development is 'BASIX development' as defined by the EPA Regulation and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements. 5. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied. 6. Pursuant to Ch 2 of SEPP RH the site is mapped as being within the 'Coastal Environment Area' and the 'Coastal Use Area'. However, the site is also mapped as being within the Foreshore and Waterways Area. The effect of the exclusion of land within the Foreshores and Waterways Area at ss 2.10(3) and 2.11(3) of SEPP RH is that ss 2.10 and 2.11 of SEPP RH do not apply to the development application. 7. The amended development application does not propose the clearance of any native vegetation nor vegetation of ecological or biodiversity significance: Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021(SEPP BC). 8. Part 6.2 'Development in regulated catchments' of the SEPP BC applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural and stormwater plans, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water. 9. Part 6.3 'Foreshore and Waterways Area' applies as the land is located in the Foreshore and Waterways Area. As required by s 6.28 in determining the development application I have considered the matters at subss 6.28(1) and (2) and am satisfied the requirements are met. Appropriate conditions are imposed on consent. The proposed development will not be detrimental to general scenic quality and the ecology of the Sydney Harbour Catchment and will not unduly impose upon the overall character of the foreshore given that the scale and the localised nature of the proposed development. Furthermore, the proposed development would not adversely affect the environmental processes, including in relation to water quality and biodiversity. Further, agreed conditions have been imposed to manage stormwater runoff and subsoil drainage to ensure controlled stormwater management. 10. The North Sydney Local Environmental Plan 2013 (LEP 2013) is the relevant local environmental plan that applies to the land. Pursuant to LEP 2013 the site is zoned R2 Low Density Residential. The proposed development is permitted with consent in the zone. As required by cl 2.3(2) of LEP 2013, in determining the development application I have considered the objectives of the R2 Low Density Residential zone. 11. Pursuant to cl 4.3: Height of Buildings the land has a prescribed maximum building height of 8.5m. The development proposes a maximum building height of 9.7m. The development application relies on a variation to the development standard pursuant to cl 4.6 of LEP 2013. The development application includes a written request prepared by Minto Planning Services Pty Ltd, in support of the variation. The written request addresses the matters set out at cl 4.6(3) of LEP 2013, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118. 1. Pursuant to cl 4.6(3) of LEP 2013, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being: 1. that compliance with the development standard in cl 4.3 of LEP 2013 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2013); and, 2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of LEP 2013 (subcl 4.6(3)(b) of LEP 2013). 1. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23]. 2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the maximum height development standard in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. On the evidence, the development reflects the site landforms and facilitates the sharing of views in a building form compatible with the local character whilst maintaining appropriate solar access. 3. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard. 4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the site area standard and the objectives for development within the R2 Low Density Residential zone for the reasons detailed in the written request. 5. I accept the agreed submission of the parties that the Court has the power to determine the application without the concurrent of the Planning Secretary pursuant to s 8.14(3) of the EPA Act and s 39(6) of the LEC Act. 6. Having regard to all of the above matters, I am satisfied that I should uphold the cl 4.6 variation request in relation to the building height standard in LEP 2013. 1. The subject site is located within the Kurraba Point Heritage Conservation Area (HCA) and accordingly cl 5.10 of LEP 2013 applies. The development application includes a Heritage Impact Assessment prepared by Weir Phillips Heritage and Planning. Further, the heritage impacts of the development were the subject of expert evidence. Based on these documents, I have considered the effect of the proposed development on the heritage significance of the HCA. 2. Clause 6.9 'Limited Development on foreshore area' applies to the site. None of the proposed alterations and additions are proposed forward of the foreshore building line: cl 6.9(2) of LEP 2013. After considering the matter listed at subcl (3), I find that the proposed development satisfies the listed matters. 3. The extent of earthworks proposed by the development application are minimal and predominately contained within the footprint of the existing dwelling. As required by cl 6.10 Earthworks of LEP 2013, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application. 4. North Sydney Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (subs 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Respondent approves the Applicant amending development application No DA 381/22 pursuant to ss 37 and 38 of the EPA Regulation, to include the following plans and documents: Plans Rev Date Architectural Plans prepared by Fortey & Grant Architecture Pty Ltd i) Cover Page, Drawing Register & General notes, dwg no. A-000 B 22 August 2024 ii) Site Plan & Area Calculations, dwg no. A-001 B 22 August 2024 iii) Area Plans 1, dwg no. A-002 B 22 August 2024 iv) Area Plans 2, dwg no. A-003 B 22 August 2024 v) Existing Lower Ground Floor Plan, dwg no. B 22 August 2024 vi) A-101 vii) Existing Ground Floor Plan, dwg no. A-102 B 22 August 2024 viii) Existing Roof Plan, dwg no. A-103 B 22 August 2024 ix) Lower Ground Demolition Plan, dwg no. A-111 B 22 August 2024 x) Ground Demolition Plan, dwg no. A-112 B 22 August 2024 xi) Roof Demolition Plan, dwg no. A-113 B 22 August 2024 xii) Proposed Lower Ground Floor Plan, dwg no. A-121 B 22 August 2024 xiii) Proposed Ground Floor Plan, dwg no. A-122 B 22 August 2024 xiv) Proposed First Floor Plan, dwg no. A-123 B 22 August 2024 xv) Proposed Roof Plan, dwg no. A-124 B 22 August 2024 xvi) Existing views, dwg no. A-200 B 22 August 2024 xvii) Elevations Existing, dwg no. A-201 B 22 August 2024 xviii) Proposed North Elevation, dwg no. A-211 B 22 August 2024 xix) Proposed South Elevations, dwg no. A-212 B 22 August 2024 xx) Proposed East Elevation, dwg no. A-213 B 22 August 2024 xxi) Proposed West Elevation, dwg no. A-214 B 22 August 2024 xxii) Proposed Long Section, dwg no. A-311 B 22 August 2024 xxiii) Proposed Cross Section, dwg no. A-312 B 22 August 2024 xxiv) 8.5m Height Plane View, dwg no. A-401 B 22 August 2024 xxv) Shadows – Jun 21, dwg no. A-501 B 22 August 2024 xxvi) Shadows – Mar 21, dwg no. A-502 B 22 August 2024 xxvii) Shadows – Sep 21, dwg no. A-503 B 22 August 2024 xxviii) Eye of the Sun Diagrams 1, dwg no. A-504 B 22 August 2024 xxix) Eye of the Sun Diagrams 2, dwg no. A-505 B 22 August 2024 xxx) Eye of the Sun Diagrams 3, dwg no. A-506 B 22 August 2024 xxxi) Schedule of Materials and Finishes, dwg no. A-510 B 22 August 2024 Landscape Plans prepared by A Total Concept Landscape Architects i) Proposed Landscape Plan, dwg no. L/01 C 6 August 2024 ii) Proposed Landscape Area Calculation plan, dwg no. L/02 C 6 August 2024 iii) Proposed Landscape Irrigation Plan, dwg no L/03 C 6 August 2024 iv) Landscape Details, dwg no. L/04 B 15 July 2024 v) Landscape Specification, dwg no. L/05 B 15 July 2024 BASIX Certificate No. A1763170 - 5 September 2024 Clause 4.6 Variation prepared by Minto Planning Services Pty Ltd - 21 August 2024 1. The Court orders that: 1. The appeal is upheld 2. Development consent is granted to development application No DA 381/2022 for alterations and additions to an existing residential dwelling including internal reconfiguration, first floor extension, new garage and associated landscape works on the land at 9 Gundimaine Avenue, Kurraba Point NSW 2089, known as Lot 2 in Deposited Plan 9797, subject to the conditions in Annexure A. D Dickson Commissioner of the Court ********** Annexure A 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: 04 October 2024