Bateman v North Sydney Council

[2023] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bateman v North Sydney Council [2023] NSWLEC 1152

Hearing dates:

Conciliation conference held on 24 March 2023

Date of orders:

04 April 2023

Decision date:

04 April 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 121/2022 for the demolition of the detached garage and construction of a new detached studio outbuilding and associated works, at 31 Wycombe Road, Kurraba Point, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – 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, cl 5.10, Sch 5

Category:

Principal judgment

Parties:

Thomas Henry Carwardine Bateman (First Applicant)
Fiona Lucy Milbourne Bateman (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
N Nadj (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2022/346270

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against a number of conditions of consent imposed on Development Consent No. 121/2022 for the demolition of the detached garage and construction of a new detached studio outbuilding and associated works (the proposal), at 31 Wycombe Road, Kurraba Point (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 was held on 24 March 2023. I presided over the conciliation conference. 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.

3. 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.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Planning framework

5. The site is zoned R2 Low Density Residential pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013). The objectives of the zone, to which regard must be had, are:

• 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.

6. The site is located within the Kurraba Point Heritage Conservation Area (Kurraba Point HCA). The site is a local heritage item (item 742, Sch 5 to LEP 2013). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the item and the Kurraba Point HCA, pursuant to cl 5.10(4) of LEP 2013. I accept the Council’s submission that the Heritage Impact Statement provided with the application demonstrates that the proposal will not impact the identified heritage significance of the item or the Kurraba Point HCA.

Conclusion

7. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 22 March 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

8. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 121/2022 for the demolition of the detached garage and construction of a new detached studio outbuilding and associated works, at 31 Wycombe Road, Kurraba Point, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 04 April 2023