Allen v North Sydney Council

[2024] NSWLEC 1466

Land and Environment Court

New South Wales

Medium Neutral Citation:

Allen v North Sydney Council [2024] NSWLEC 1466

Hearing dates:

Conciliation Conference 17 June, 2, 9 July 2024

Date of orders:

2 August 2024

Decision date:

02 August 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development Application No. DA346/22, for ground floor alterations and the extension of the rear first floor of the dwelling at 75 Holtermann Street, Crows Nest NSW 2065, is determined by the grant of consent subject to the conditions at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to 2 storey terrace house – heritage conservation area - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 5.102

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Category:

Principal judgment

Parties:

Catherine Louise Allen (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
L Mulligan (solicitor) (Applicant)
K Law (solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Mathews Folbigg Lawyers (Respondent)

File Number(s):

2023/462789

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the North Sydney Council (the Council) of DA346/2022 (the DA) for ground floor alterations and the extension of the rear first floor of the dwelling at (the Proposed Development) at 75 Holtermann Street, Crows Nest NSW 2065, being Lot A in DP 107972 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Council Chambers. 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 and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the class 1 appeal and grant development consent to the Proposed Development, as amended, with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction:

5. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

North Sydney Local Environmental Plan 2013 (NSLEP)

6. The Site is zoned R2 – Low Density Residential pursuant to cl 2.3 of the NSLEP. Development for the purpose of dwellings is permissible with consent in the zone and demolition of the existing structures may be carried out with development consent under cl 2.7 of the NSLEP.

7. Having regard to the objectives of the R2 zone set out in the Statement, the Amended Statement of Environmental Effects prepared by DFP Planning Consultants dated December 2023 and the Final Plans, to the extent necessary, the Court is satisfied that the proposed development achieves the objectives of the R2 zone.

Height – Clause 4.3

8. The DA as amended by the Final Plans complies with the maximum building height of 8.5m, as provided by cl 4.3 of the NSLEP.

Heritage – Clause 5.10

9. The Site is located in a heritage conservation area and cl 5.10(4) requires the consent authority, before granting development consent in respect of a site within a heritage conservation area, to:

‘consider the effect of the proposed development on the heritage significance of the item or area concerned.’

10. The DA was submitted with a Heritage Impact Statement prepared by Biarchitects dated 15 October 2022, which has been considered by the Council, who determined that the effect of the proposed development on the heritage significance of the HCA was acceptable. The Court accepts the agreed position that any potential heritage impact has been considered and there is no barrier to the grant of consent to the Proposed Development, as amended, on heritage grounds.

State Environmental Planning Instruments (SEPP)

11. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:

1. (1) State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. (2) State Environmental Planning Policy (Resilience and Hazards) 2021

3. (3) State Environmental Planning Policy (Transport and Infrastructure) 2021

Public Consultation:

12. The DA was publicly notified in accordance with Council’s Community Engagement Policy from 25 November 2022 to 9 December 2022. The Council received 5 submissions in response to the notification. The DA was amended with Council’s consent on 23 January 2024.

13. On 24 January 2024, the objectors who had made submissions in respect to the application were notified of the amendments to the application. The Council received 2 submissions in response to the amended application.

14. At the Site view as part of the s 34 conference, the Court heard oral submissions from the owners of the adjoining terrace house at 77 Holtermann Street. They had in fact recently sold this property at 77 and the purchaser, who was also present, did not have anything additional to say in relation to the proposed development. The location was examined by the Court and the parties both from the Haltermann Street front and the rear lane to examine the issues raised by the neighbours.

15. I am satisfied that the objectors reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion:

16. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

17. 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. 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.

Notations:

18. The Court notes that:

1. The Respondent, North Sydney Council, as the relevant consent authority, has agreed, under s.38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA346/22 in accordance with the below documents (‘Amended Application’):

Plan No.	Rev.	Title	Drawn By	Dated
DA04	C	Site / Roof / Sediment Erosion /Waste Management / Stormwater Concept Plan	Action Plans	19.06.2024
DA08	C	Proposed First Floor Plan	Action Plans	19.06.2024
DA09	C	Elevations	Action Plans	19.06.2024
DA10	C	Elevations 2	Action Plans	19.06.2024
DA11	C	Sections	Action Plans	19.06.2024
DA12	C	Areas Calculation	Action Plans	19.6.2024
DA20	C	BASIX Certificate	Action Plans	2.7.2024

Orders:

19. The Court orders:

1. The appeal is upheld;

2. Development Application No. DA346/22, for ground floor alterations and the extension of the rear first floor of the dwelling at 75 Holtermann Street, Crows Nest NSW 2065, is determined by the grant of consent subject to the conditions at Annexure ‘A’.

L Byrne

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 06 August 2024