Land and Environment Court New South Wales Medium Neutral Citation: Shetty v North Sydney Council [2024] NSWLEC 1693 Hearing dates: 21-22 October 2024: final submissions 24 October 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant's written request, prepared by Avenue Town Planning dated 23 October 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013, to vary the height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld. (2) The appeal is upheld. (3) Development Application No. 290/23, as amended, for alterations and additions to an attached dual occupancy at 1/19 Lavender Street, Lavender Bay, is determined by the grant of consent subject to the conditions at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to heritage item – heritage conservation – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, s 38 North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 6.10, Sch 5 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 2.6, 6.28, 6.3, 6.6, 6.7, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sustainable Buildings) 2022 Cases Cited: Merman Investments v Woollahra Municipal Council [2021] NSWLEC 1582 Category: Principal judgment Parties: Jeppu Shetty (Applicant) North Sydney Council (Respondent) Representation: Counsel: F Bergland (Applicant) H Irish (Respondent) Solicitors: Mills Oakley (Applicant) Hall & Wilcox (Respondent) File Number(s): 2024/200596 Publication restriction: Nil Judgment 1. COMMISSIONER: On the northern shore of Sydney Harbour, west of the Sydney Harbour Bridge, lies Lavender Bay, which is the name of both the water body and the small Sydney suburb that rises to its north. 2. On the steep slopes to the north of Lavender Bay stands a building at 19 Lavender Street that is an attached dual occupancy comprising two dwellings known as Lots 1 and in strata plan SP 66449. 3. The site occupies a benched area above Watt Park, and below Lavender Street which is raised higher by a sandstone retaining wall to the north. 4. Unit 1/19 Lavender Street presents to the street as a predominantly sandstone building from the Victorian period, with a corrugated iron pitched roof and verandah to a single width road that provides access below the retaining wall supporting Lavender Street (Upper). This lower access road is also known as Lavender Street, and which I am told is the original location of Lavender Street before it was built up, to be referred to as Lavender Street (Lower). 5. Unit 2/19, while joined to Lot 1, presents as a rendered masonry façade, without a pitched roof, but is instead crenelated with a flat roof terrace behind, used as private open space. Further to the east is another attached dwelling known as 21 Lavender Street. 6. A detached timber garage building occupies the north western corner of the site, providing parking for vehicles associated with Lots 1 and 2. 7. On 22 September 2023, development application DA290/23 was lodged with North Sydney Council (the Council), seeking consent for those works generally described above. 8. The DA was notified from 13 October 2023 to 27 October 2023 in response to which eight submissions were received. 9. The North Sydney Local Planning Panel refused the DA, on behalf of the Council, on 1 May 2024 and the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court's jurisdiction. 10. The appeal was listed for mandatory conciliation on 21 October 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 11. At the conciliation conference that followed the onsite view, the parties were able to reach agreement on those matters in contentions, subject to the preparation of amended plans and other documents. 12. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 24 October 2024. 13. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 14. 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. 15. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 16. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The height of buildings standard is exceeded 1. The existing building exceeds the height of buildings standard of 8.5m at cl 4.3 of the North Sydney Local Environmental Plan 2013, as does the upper elements of the proposed alterations and additions on the site. 2. A written request authored by Avenue Town Planning in accordance with cl 4.6 of the NSLEP and dated 23 October 2024 accompanies the DA as amended (the written request). The written request summarises the exceedance of the height standard as follows: 1. The original heritage dwelling exceeds the height standard by 4.83m. 2. The alterations and additions to the south exceeds the height standard by 2.1m when measured to the top of the roof terrace balustrade. 3. Prior excavation on the site has affected the topography so that the height standard may be applied to either the altered natural topography or the extrapolated natural ground line. If measured to the latter, the height exceedance would be significantly reduced so as to be indistinguishable from a fully compliant building. 4. Where the proposed exceedance is greatest, it is lower than the balustrade of the existing dwelling and is compatible with that of the adjoining dwelling at Unit 2/19 Lavender Street. 1. I am satisfied the written request adequately demonstrates that compliance with the height standard is unreasonable or unnecessary, because the objectives of the height standard are achieved notwithstanding the non-compliance set out above. 2. The objectives of the height standard, at cl 4.3 of the NSLEP are in the following terms: (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 C4 Environmental Living. 1. In respect of objective (a), I accept the proposal is designed to extend from and maintain the existing levels of the original dwelling that is located above the height standard, in the approximate footprint of the existing addition where a step in built form has historically been located. 2. In respect of objective (b), I accept the minor projections above the height standard are limited to the southern part of the original dwelling and will not impact on any views captured from adjoining dwellings or from significant public vantage points such as Lavender Street. 3. In respect of objective (c), I accept the proposal does not impact the level of sunlight gained to north facing windows, roof skylight or roof terrace to the adjoining dwelling at Unit 2/19 Lavender Street. 4. In respect of objective (d), I accept the alignment of the proposed development to the south has been designed to avoid overlooking of sensitive windows to Unit 2/19 Lavender Street such that privacy is maintained notwithstanding the exceedance. 5. In respect of objective (e), I accept the proposed additions are compatible with the character of the existing heritage item, and its neighbours. In respect of the adjoining RE1 land to the north, I also accept that the retention of views from the public domain to the RE1 land is an aspect of compatibility due to the particular arrangement of built form on the site that maintains a sightline across the site, zoned R3, to the land beyond, zoned RE1 notwithstanding the exceedance. 6. In respect of objective (f), I accept that the alterations and additions are to an existing heritage item that adjoins another item of heritage significance – both of which currently exceed the height standard and so demonstrate that exceedance of the height standard is not, of itself, inconsistent with the desired future character of the area. 7. In respect of objective (g), the proposed additions present as two-storeys when the site is viewed from the north and west, that allows the additions to read as subservient to the existing built form on the site. 8. Next the written request sets out environmental planning grounds it argues are sufficient to justify the contravening of the height standard, in accordance with cl 4.6(3)(b) of the NSLEP. These grounds are summarised as follows: 1. Firstly, the ground level from which the height is measured has been distorted by prior excavation. When the height standard is applied to an extrapolated ground line, the exceedance is limited to a small portion of the parapet, balustrade to the uppermost terrace and privacy measures to the east of that terrace. Conversely, when the height is considered from that part of the site that has been previously excavated, the exceedance is reasonable (see: Merman Investments v Woollahra Municipal Council [2021] NSWLEC 1582 at [74]). 2. Secondly, when viewed from land to the south of the site, the precise height of buildings fronting Lavender Crescent is difficult to perceive, but in reality, all three dwellings on Lavender Street (lower) exceed the height standard and so strict compliance with the height standard would appear unreasonable where the established scale and character of development in the vicinity of the site is otherwise that compliant. 3. Thirdly, when viewed from Waiwera Street to the west, the proposed additions are generously set back, are on a sloping site and are generally read against existing built form that likewise exceeds the height standard. 4. Fourthly, the proposal does not impose unreasonable amenity impacts on adjoining neighbours when privacy, overshadowing or view loss is considered. In terms of view loss, the local topography elevates those properties located on the northern side of Lavender Street (upper) so that views are retained above the exceedance, and views are sufficiently retained from the Lavender Street public domain. 5. Fifthly, the proposal has been designed in conjunction with specialist heritage expertise, is designed to improve access to each level of a listed heritage item while remaining subservient to it and where there is no clear planning purpose to be served by strict compliance. 6. Sixthly, the proposal achieves compliance with the objects of the EPA Act in the manner set out in the written request, and is in the public interest because it is consistent with the objectives of the standard and with the R3 Medium Density Residential zone, in which the site is located. 1. The objectives of the R3 zone are in the following terms: • 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 written request considers the proposal consistent with the objectives of the R3 zone for reasons that follow: 1. The proposed development improves access to all levels within the existing heritage item that will service the needs of the resident of the site. 2. The proposal does not preclude, but supports, other land uses that provide facilities or services for residents in the area. 3. The development proposed does not compromise the amenity of the surrounding area but contributes to the cultural heritage of the area through the suitable and complementary response to a heritage item. 4. The proposal provides a suitable visual transition between the R4 land to the west of the site, and the RE1 land to the south of the site by modulating the proposed built form visible from Waiwera Street, from a height that exceeds the height standard, to a single storey when perceived from the public domain. 5. The proposed additions serve to improve the residential amenity of the heritage item without adverse impacts arising. 1. Finally, as no matters of significance for State or regional environmental planning arise as a consequence of the exceedance, there is no public interest served by requiring strict compliance and the secretary's concurrence may be assumed and the written request upheld. 2. I am satisfied that compliance with the height standard is unreasonable or unnecessary in the circumstances of this case as the objectives of the height standard at cl 4.3 are achieved not withstanding the non-compliance, for the reasons set out in the written request and summarised at [21]-[27]. 3. I am also satisfied that there are sufficient environmental planning grounds to justify the contravening of the height standard as summarised at [28]. 4. As such, I am satisfied that the written request adequately addresses those matters to be demonstrated by it, in accordance with cl 4.6(3) of the NSLEP. 5. I also accept and am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the standard, and of the R3 zone. In arriving at this opinion of satisfaction I have considered the degree of sightline currently achieved from Lavender Street (upper), toward Watt Park and Sydney harbour between the existing timber garage structure and the existing additions to the west of the original sandstone building. The view is currently filtered by existing foliage in the canopy of the Peppercorn tree identified in the Arboricultural Impact Assessment prepared by Ezigrow dated 2 September 2024 (Arborist Report) as Tree T3. The additional built form extending westward of the existing additions is so shaped and setback that the sightline is appropriately retained. 6. For these reasons, I find the written request should be upheld. Other jurisdictional issues are considered 1. No 19 Lavender Street is identified in Sch 5 of the NSLEP as an item of local heritage significance. The heritage experts agree that the amended plans and other documents result in no adverse impact on the heritage item, or to the Lavender Bay Conservation Area, that is likewise identified within Sch 5 of the NSLEP. 2. The proposal includes earthworks in the form of excavation. On the basis of the Geotechnical Assessment prepared by Crozier dated 22 June 2023, and the existing natural ground levels depicted on the architectural plans prepared by McHendry Hunt Architects, I have considered those matters at cl 6.10(3) of the NSLEP and conclude they are adequately addressed. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by the Arborist Report that assesses four existing trees, concluding all to be retained. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent. 2. As the development application was lodged after the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions at s 6.65 of the Biodiversity SEPP do not apply. The effect of this is that Chapters 7-12 are repealed. 3. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map and is within the Foreshores and Waterways Area. 4. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised. 5. The Stormwater Plans prepared by Partridge provide controls that I am satisfied are appropriate for the control and treatment of stormwater. Stormwater run-off generated on the site will be directed through a first flush system, and then via a silt arrestor pit, which will only then connect to the public drainage system to Lavender Crescent to the south of the site. I also note the extent of impervious area is proposed to be reduced such that permeable area increases from 44m2 on the site to 93m2 of the site. For these reasons, I accept and am satisfied the effect of the proposal on the quality of water entering Sydney Harbour will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised. 6. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion. 7. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP. 8. In accordance with s 6.28(2) of the Biodiversity SEPP, I am also satisfied that the proposal will retain the current and future demand, functions and character of the harbour will not result in excessive traffic congestion, and will maintain the visual qualities of the Foreshore and Waterways Area. State Environmental Planning Policy (Resilience and Hazards) 2021 1. As part of the Site is identified as being within the "Coastal use area" and "Coastal Environment Area", Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies. 2. However, as the site is also within the Foreshores and Waterways Area at s Pt 6.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.10(3) and 2.11(3) of the Resilience and Hazards SEPP do not apply. 3. Sections 2.12 and 2.13 of the Resilience and Hazards SEPP provide that a consent authority must not grant development consent to development in costal zones generally unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazard, and has taken into consideration the relevant provisions of any certified coastal management program. 4. I am satisfied, as I am required to be by s 2.12 of the Resilience and Hazards SEPP that the significant setback and elevation of the site from the shore of Lavender Bay precludes the likelihood of increased risk of coastal hazards. Further, that in respect of s 2.13, I understand there to be no certified coastal management program applicable to the site. 5. I have considered whether the site is contaminated in accordance with s 4.6 of the Resilience and Hazards SEPP. On the basis of the Statement of Environmental Effects prepared by Avenue Town Planning dated 16 May 2023, and the Amended Heritage Impact Statement, prepared by Placemark dated 23 October 2024, I accept that the Site has historically been used for residential purposes with no former (non-indigenous) use prior to this period, no known history of contamination applicable to the Site and no known prior use of the property that would suggest potential contamination. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The application is accompanied by a BASIX certificate (Cert No. A493343_04 prepared by Chapman Environmental Services Pty Ltd) dated 23 October 2024 in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). 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. The Respondent, North Sydney Council, as the relevant consent authority, has approved, under section 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. 290/23 to include the documents set out in Annexure 'B' ('Amended Application'). Orders 1. The Court orders that: 1. The Applicant's written request, prepared by Avenue Town Planning dated 23 October 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013, to vary the height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld. 2. The appeal is upheld. 3. Development Application No. 290/23, as amended, for alterations and additions to an attached dual occupancy at 1/19 Lavender Street, Lavender Bay, is determined by the grant of consent subject to the conditions at Annexure 'A'. T Horton Commissioner of the Court Annexure A Annexure B ********** 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: 31 October 2024