Pamada Cammeray No. 8 Pty Ltd v North Sydney Council [2013] NSWLEC 1104

Land and Environment Court New South Wales

Medium Neutral Citation: Pamada Cammeray No. 8 Pty Ltd v North Sydney Council [2013] NSWLEC 1104 Hearing dates: 20 June 2013 Decision date: 20 June 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions Catchwords: MODIFICATION APPLICATION; minor alterations Legislation Cited: Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 Category: Principal judgment Parties: Pamada Cammeray No. 8 Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Applicant: Mr A Perkins (Solicitor) Respondent: Mr J.P Merlino (Solicitor) Applicant: Colin Biggers & Paisley Respondent: HWL Ebsworth Lawyers File Number(s): 10097 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: In 2010 the Court gave conditional consent (D305/05) to development application DA 305/2005 for an apartment building and other works at 2 Vale Street Cammeray. The decision is given in Simpson v North Sydney Council [2010] NSWLEC1211. 2Amongst other things, the deferred commencement conditions required the parties to enter into a Planning Agreement to dedicate land to council for Public Open Space and to alter the plans that effectively reflected the Court's findings. These conditions have been met. 3This appeal before the Court is against North Sydney Council's refusal of s 96 Development Application D305/05/3 which seeks to modify consent D305/05. The appeal is made under sections 96AA and 97AA of the Environmental Planning and Assessment Act 1979 (the Act). 4The proposed modifications are primarily changes to the building envelope of the apartment block in order to accommodate changes to the design and internal layout of the units as well as changes to the size and configuration of the two basement levels. 5In summary, the proposed modifications are: * Lowering of basement level B2 by 550mm; minor reconfiguration of parking, storage space, sprinkler water and detention tanks; and a net increase in approximately 24m2 in floor space/excavated area; * Reconfiguration of parking and a small net increase in excavation at basement level B1; * Extension of the northern elevation northwards by up to 800mm and minor additional sideways projections in some sections of residential levels 1,2 and 3 due to the reconfiguration of unit layout and location of balconies (an increase of about 20m2); and * Minor inconsequential changes to the layout of the roof garden/ entry level with no increase in height of the building/ structures. 6The applicant initially sought the deletion or modification of conditions of consent pertaining to the existing dwelling and a new pool, however those proposed amendments have been withdrawn. The only proposed change in this regard is to include a condition enabling the issue of separate occupation certificates for the apartment building and the dwelling. Council does not oppose this change to the application. Similarly, the Court has no objection to this modification of the application. 7Council raises no merit contentions in relation to the modification application and accepts that the proposed changes are resolvable by imposing or modifying conditions of consent. 8Council's Executive Planner, Mr Ian Pickles prepared a Position Statement that essentially summarises his report to council (included in council's bundle of documents). Mr Pickles considers that when assessed against the development approved by the Court, the modifications are minor and acceptable in terms of the relevant planning controls in North Sydney Local Environmental Plan 2001 (NSLEP). He notes the absence of any measurable impacts on nearby properties, bushland, or the heritage significance of the existing dwelling on the site. There will be no reduction in landscaped area, no increase in building height, and no removal of any additional trees. In his view, the relocation/ redesign of the approved balconies on the eastern side of the apartment building is likely to reduce the potential privacy impact on, and improve the amenity of, the neighbouring units to the east at 12 Cambridge Street. 9The principal reason for council's refusal appears to be that the modifications are not in the interest of the community as a consequence of issues raised by a number of nearby residents. The matters raised in submissions include: * Lowering of bushfire protection obligations by a reduction in the width of the Asset Protection Zone (APZ) and a possible consequential exposure of council to liability; * Increases in building height, envelope, excavation and building form, especially on the northern elevation, which will increase the negative impacts of the development on the amenity and enjoyment of residents; * Loss of bushland and trees; and * The goal posts fixed by the court should be complied with. 10The hearing commenced on site as a number of residents wished to make statements in support of their submissions. This provided the applicant with an opportunity to show the residents the extent of the changes against the approved building footprint and floor plans. 11While some residents were somewhat satisfied that the proposed changes were indeed minor, a number of residents remained fundamentally opposed to the approved development and to ongoing, incremental changes. Several residents wanted certainty that the applicant would not continue to lodge development applications for further changes to the approved development.