Land and Environment Court New South Wales Medium Neutral Citation: Xie v North Sydney Council [2020] NSWLEC 1196 Hearing dates: Conciliation conference on 27 April 2020 Date of orders: 29 April 2020 Decision date: 29 April 2020 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [11] Catchwords: MODIFICATION APPLICATION – heritage conservation area – conciliation conference - agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 Texts Cited: Land and Environment Court of the New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Category: Principal judgment Parties: Peter Ping Xie (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) K Law (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Matthews Folbigg (Respondent) File Number(s): 2019/274015 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a modification application brought before the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 ('EPA Act') in relation to the refusal by the North Sydney Council (the Respondent) of Modification Application No. 329/17/2 seeking to modify development consent 329/17 to alter the front dormer and update façade treatments at 17 Milson Road, Cremorne Point (the site). 2. The matter was initially listed for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 ('LEC Act') on 27 April 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court's website. 3. Consistent with the Pandemic Policy, the parties consented to amended orders on 16 April 2020, and the conciliation conference was listed to commence on 27 April 2020 by telephone. As no objector submissions had been received in relation to the modification application, no objector submissions were heard at the commencement of the proceedings. 4. Prior to the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 24 April 2020. 5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 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 decision agreed by the parties is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 7. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons: 1. The site is located within the R2 Low Density Residential zone as identified by the North Sydney Local Environmental Plan 2013 (NSLEP). The provisions of the R2 zone permit dwelling housing development that is consistent with the objectives of the zone, which are as follows: 1 Objectives of zone • 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 site is within the Cremorne Point Heritage Conservation Area, which is listed for its local heritage significance at Schedule 5 of the NSLEP and so the provisions of cl 5.10 apply to the proposed modification. On the basis of the Heritage Impact Statement prepared by Mr John Oultram dated January 2019, and the agreement between the heritage experts that the amended plans are acceptable for the Federation period, I consider the effect of the modification application on the Cremorne Point Heritage Conservation Area to be acceptable. 2. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 3. In accordance with s 4.55(2)(a) of the EPA Act, I am satisfied that the proposal is substantially the same development as the development for which consent was originally granted and so I consider there to be proper grounds on which the consent may be modified. 1. As the jurisdictional prerequisites to the grant of consent have been addressed I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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. 3. 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. 4. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to amend the application to modify development consent 329/17 and rely on the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans Loft Plan 4.55-05 B 15 April 2020 Fortey+Grant Architecture Roof Plan 4.55-06 B 15 April 2020 Fortey+Grant Architecture South Elevation 4.55-08 B 15 April 2020 Fortey+Grant Architecture East Elevation 4.55-09 B 15 April 2020 Fortey+Grant Architecture West Elevation 4.55-10 B 15 April 2020 Fortey+Grant Architecture Section 4.55-12 B 15 April 2020 Fortey+Grant Architecture Materials and Finishes 4.55-13 B 15 April 2020 Fortey+Grant Architecture 1. The Appeal is upheld. 2. Modification Application number 329/17/2 for the modification of development consent 329/17 to alter the front dormer and façade treatment at 17 Milson Road, Cremorne Point is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………. Tim Horton Commissioner of the Court Annexure A (28.0 KB) Plans (3.13 MB) ********** 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: 29 April 2020