Land and Environment Court New South Wales Medium Neutral Citation: Brenham Pty Ltd v North Sydney Council [2019] NSWLEC 1212 Hearing dates: Conciliation Conference on 13 May 2019 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Modification Application No. No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence, is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – height of the internal secondary palisade fence and gate – State heritage item. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343 Category: Principal judgment Parties: Brenham Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Hemmings (Applicant) Solicitors: Hones Lawyers (Applicant) K Law, Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2018/236368 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence (the proposal) at 3 Amherst Street, Cammeray (the site) by North Sydney Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 May 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. 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. Background 1. Development Consent 382/14 was granted on 16 August 2016 by the Land and Environment Court (Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343) for alterations and additions to the existing premises and use as a childcare centre. Planning framework 1. The site is zoned R4 High Density Residential under North Sydney Local Environment Plan 2013 (LEP 2013). The objectives of the R4 zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high 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 high density housing 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 reasonably high level of residential amenity is achieved and maintained. 1. The site is listed on the State Heritage Register (SHR) as an item of heritage significance (SHR No. 00270) and in Sch 5 of LEP 2013 'Tarella, 3 Amherst Street, Cammeray Item 0001 State Significance'. The site is within a heritage conservation area. Clause 5.10 of LEP 2013 has as an objective, at (1)(b), to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. The consent authority must, at (4), consider the effect of the proposed development on the heritage significance of the item or area concerned before granting consent. The State Heritage Inventory Sheet for 'Tarella' includes the following statement of significance and description of the item: "Statement of Significance Fine example of a grand Victorian Mansion. Residence of important public figure of the nineteenth century. One of the earliest buildings established in the vicinity and one of the earliest still in existence. Fine garden and entry to house. The exterior, landscape setting and interior and this property are of significance. Description A two-storey Victorian residence of brick construction (tuck-pointed, now painted) with corbelled brick eaves and hipped slate roof. Set well-back from the street frontage on a large site, the house has a two-storey verandah on the main (north) elevation; the lower level verandah is paved with tessellated [sic] tiles in a mosaic pattern with a slate border; slender cast-iron columns support the timber structures of the upper level. Panelled front door has sidelights, a leadlight panel over and brass door knob, knocker and bell pull. There is a large semi-formal garden between the painted iron palisade fence on the Amherst Street boundary and the house. The garden features mature palms, lavender hedges, roses, pomegranate and frangipani trees with a fountain and pond in the lawn. Interior room configuration still evident. Interior of significance. This building is designed in the Victorian Italianate style. Historical note Tarella was originally the house of Sir Joseph Palmer Abbott, K.C.M.G., a former speaker of the New South Wales Legislative Assembly. J.P. Abbott built Tarella c. 1874, on land he had acquired in 1881. His grounds were extensive and included a coach house, windmill and stables. The house was saved from demolition in 1970 and restored with a new coach house constructed." 1. I am satisfied that the proposal will have an acceptable impact on the heritage significance of the item, because views from the public domain of the front elevation and garden of the historic Victorian residence are maintained by the proposal. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Modification Application No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence, is approved, subject to the consolidated conditions of consent at Annexure A. ____________ Susan O'Neill 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: 15 May 2019