CMBR Marine Pty Ltd v North Sydney Council

[2024] NSWLEC 1308

Land and Environment Court

New South Wales

Medium Neutral Citation:

CMBR Marine Pty Ltd v North Sydney Council [2024] NSWLEC 1308

Hearing dates:

Conciliation Conference 19 February, 11 March, 8 and 28 May 2024

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The clause 4.6 written request prepared by The Planning Studio is upheld.

(2)   The appeal is upheld.

(3)   Development Application No DA132/23 lodged on 5 May 2023, as amended, for the 'construction of 2 dual occupancy dwellings on 2 lots (1 dual occupancy dwelling per lot) for a total of four dwellings across the two lots' at 11 Bennett Street, Cremorne, legally described as Lot 1 and Lot 2 in Deposited Plan 1300297 (Site), is determined by the grant of consent subject to conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential – dual occupancy – height of building development standard – ground level existing – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Water Management Act 2000

Fisheries Management Act 1994

Environmental Planning and Assessment Regulation 2021, ss 27, 38

North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 5.21, 5.23, 6.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 2.8, 6.5, 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, 4.2

Category:

Principal judgment

Parties:

CMBR Marine Pty Ltd ABN 24 630 462 510 (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Thomson Geer (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/213700

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA132/2023 for the construction of 2 dual occupancy dwellings on 2 lots (1 dual occupancy dwelling per lot) for a total of four dwellings across the 2 lots (the Proposed Development) at 11 and 13 Bennett Street, Cremorne legally described as Lot 1 and Lot 2 in Deposited Plan 1300297 formerly known as Lot 1 in DP 1110849 and Lot B in DP 350785 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 19 February 2024, 11 March 2024, 8 and 28 May 2024 when I dealt with the matter in Chamber and reserved judgment upon the filing of the Agreement pursuant to s 34 of the LEC Act on 28 May 2024. I presided over the conciliation conference.

3. The parties' heritage and town planning experts prepared and filed Joint Expert Reports with the Court in January 2024 and the experts agree that all Contentions raised in the Statement of Facts and Contentions filed on 8 August 2023 (SOFAC) have been resolved by the preparation of the agreed conditions of consent at Annexure A incorporating the amended plans and documents referred to at Condition 1. 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 filed an agreement pursuant to s 34 of the LEC Act on 28 May 2024. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. The parties filed an agreement pursuant to s 34 of the LEC Act on 19 February 2024 however, an essential process needed to take place prior to final orders being able to be agreed to, as evidenced in the s 34 agreement filed by the parties on 28 May 2024. That essential process was the issue of a subdivision certificate and lodgement of the plan of subdivision of Lot 1 in DP110849 and Lot B DP350785 resulting in the issue by the Office of the Registrar General of NSW Land Registry Service of Deposited Plan DP1300297 creating two new lots which comprise the Site.

5. I am satisfied that pursuant to s 4.15(1)(d) of the EPA Act submissions made in accordance with the EPA Act or the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) have been considered. The Development Application was publicly notified and during the public exhibition of the Development Application the Respondent received 15 submissions in the form of objections. The submissions raised issues regarding traffic implications and parking pressure for local streets, breach of height controls, possible view loss, heritage concerns, landscaping impacts and excavation impacts. These concerns have been addressed through the amended plans. The matter commenced on site and objectors made oral submissions at the Site and also from neighbouring and adjacent properties. The Court was also provided a further written submission provided to the Respondent on 26 February 2024.

6. The amendments that have been made to the Development Application were made in response to concerns of the Respondent and objectors and result in a lesser environmental and heritage impact from the Proposed Development.

7. 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. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional statement to which I have had regard and I set out my reasons as to how each jurisdictional prerequisite has been satisfied.

10. The Site is subject to a maximum height of building (HOB) development standard of 8.4 m pursuant to cl 4.3 of the NSLEP. The expert town planners agreed as part of the preparation of the joint expert report filed 23 January 2024 that the Proposed Development has been amended to comply with the HOB development standard however there remained a degree of uncertainty as to a ground level existing so, for abundant caution, the Applicant relies on a written request to justify any contravention of the HOB development standard pursuant to cl 4.6 of NSLEP prepared by Kate Bartlett of The Planning Studio dated 29 February 2024 and filed 1 March 2024 (Written Request).

11. In so far as the substantive presentation of the height of the proposed building is concerned and any consequential impacts, for the reasons set out in the joint expert planning report all aspects of bulk and built form, privacy and overshadowing have been addressed. Regarding the uncertainty of the ground level and whether there is a contravention of the HOB development standard, the parties agree as follows:

1. in so far as the ground level existing at the date of lodgement of the Development Application is concerned, to account for the level of the site below the then existing internal swimming pool; and

2. in so far as the existing level of the Site at the date of the Court hearing (19 February 2024), the previous built form having been demolished and removed and site levels having been altered since the date of lodgement of the Development Application, to the commissioning of a site survey to which the Written Request is directed.

12. The parties agree that the Written Request should be upheld and the Court is satisfied that the Written Request seeking to justify the contravention of the development standard in cl 4.3 of the NSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the NSLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

13. The Site is within the Cremorne Heritage Conservation Area and is not listed as an item of environmental heritage, accordingly, pursuant to cl 5.10(4) of the NSLEP, the consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

14. The Development Application is supported by a Heritage Impact Statement (HIS) prepared by Architectural Projects Pty Ltd filed with the Class 1 Application at Tab 3.x. The HIS provides at page 4 that the Proposed Development is “sympathetic to the heritage values of the Cremorne Conservation Area and neighbouring heritage items”. In addition, the joint expert heritage report filed with the Court on 29 January 2024 provides that the amended plans satisfactorily resolve the heritage contention.

15. Accordingly, I am satisfied that the parties have considered the effect of the Proposed Development on the Cremorne Conservation Area and on neighbouring heritage items as required by cl 5.10 of the NSLEP.

16. Council's Floodplain Risk Management Study and Plan (10 November 2022) identifies a flood planning area for the Council area. Council's Floodplain Risk Management Study and Plan provides that the Site is not within a flood planning area. The Addendum Report to the Statement of Environmental Effects (Addendum SEE) prepared by the Planning Studio dated 14 February 2024 also provides at page 4 that the land is not flood liable land, accordingly, the Proposed Development is not within the flood planning area and the jurisdictional prerequisites of cl 5.21 of the NSLEP do not apply.

17. The Site is not owned, managed or reserved for open space or environmental conservation by the Council or a public authority, accordingly the terms of cl 5.23 of the NSLEP relating to development that will disturb, or is reasonably likely to disturb, public bushland do not apply.

18. Clause 6.6 of the NSLEP relates to dual occupancies and cl 6.6(1)(a)-(c) provides as follows:

(1) Development consent must not be granted for the erection of a dual occupancy unless-

(a) the form of the building will appear as a dwelling house, and

(b) the dwellings in the dual occupancy will be attached by at least 80% of the common wall or 80% of the common floor or ceiling, and

(c) the area of the lot on which the dual occupancy is to be situated is at least 450 square metres.

19. The Proposed Development presents as two separate dwellings on two Torrens title lots. Each dual occupancy dwelling is attached by at least 80% (LEC04 (Rev A)) on the common ceiling/floor. Each new lot is more than 450m². The Statement of Environmental Effects (SEE) prepared by the Planning Studio dated 26 April 2023 filed with the Class 1 Application at Tab 3, and the plans lodged with the Development Application, together with the revised plans, demonstrate satisfaction of the requirements of cl 6.6(1) of the NSLEP.

20. Clause 6.6(2)(a) and (b) further provides as follows:

(2) A dual occupancy must not be erected on land that is located within a heritage conservation area or on which a heritage item is located unless—

(a) there is no existing building erected on the land, or

(b) the dual occupancy—

(i) will be situated substantially within the fabric of an existing building, and

(ii) will conserve the appearance of the existing building, as visible from a public place, and

(iii) will conserve the majority of the significant fabric of the existing building.

21. Development Consent No 237/18 granted consent for the demolition of the existing building on the Site and subdivision into two Torrens title lots. There is no existing building on the Site. The SEE and plans lodged with the Development Application satisfy the requirements of cl 6.6(2) of the NSLEP.

22. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the land and s 4.6 of the Resilience and Hazards SEPP provides as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subsection (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is—

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

23. A Preliminary Site Investigation has been prepared by JBS&G Australia Pty Ltd (14 February 2024) (PSI). The Report identifies potential contamination at the Site and recommends that a Remedial Action Plan be prepared to ensure the Site's suitability for the intended and ongoing residential use. Having regard to the Report and the conclusion at Part 11 of the PSI at pages 29-31, that the Site can be made suitable for the proposed ongoing residential use subject to the preparation of a Remedial Action Plan, the Court can be satisfied that the Site is suitable for the proposed use. Conditions of consent require the preparation of the contemplated Remedial Action Plan and prescribed treatment of the site in accordance with that Plan. The Court is therefore satisfied that the requirements of s 4.6 of the Resilience and Hazards SEPP are met.

24. The current State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into effect on 1 October 2023 however, s 4.2(1)(a) of the Sustainable Buildings SEPP provides that it does not apply to a development application submitted on the NSW planning portal but not finally determined before 1 October 2023. The Development Application was lodged on 5 May 2023. The now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 was in force at the time the Development Application was lodged and applies to the Land and s 27 of the EPA Regulation provides as follows:

(1)  A development application for BASIX development must be accompanied by—

(a)  a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is submitted on the NSW planning portal, and

(b)  the other matters required by the BASIX certificate.

…

25. The Development Application was accompanied by BASIX Certificate No 1375321M_02 and an updated BASIC Certificate No 1375321M_03 issued 27 February 2024 was filed with the Court on 1 March 2024. The BASIX Certificate confirms that the Proposed Development will meet the NSW Government's requirement for sustainability, if it is built in accordance with the commitments set out in the Certificate.

26. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Site and s 2.8(b)(ii) of the Biodiversity and Conservation SEPP provides that the clearing of vegetation is permitted without development consent if the vegetation is not located in a heritage conservation area. The Site is located in the Cremorne Heritage Conservation Area and the Proposed Development proposes the removal of 5 trees. The Parties acknowledge that there can be no clearing of vegetation on the Site without consent. The Applicant relies on the Arborist Report prepared by Complete Arborcare filed with the Class 1 Application at Tab 3.xx and the Proposed Development has implemented the recommendations set out in that report. Appropriate conditions of consent are included in relation to tree removal and replanting.

27. Chapter 6 of the Biodiversity and Conservation SEPP applies as the Site is located within the Sydney Harbour Catchment area. The Sydney Harbour Catchment area is a 'regulated catchment' and s 6.6 of the Biodiversity and Conservation SEPP provides as follows:

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the following—

(a) whether the development will have a neutral or beneficial effect on the quality of water entering a waterway,

(b) whether the development will have an adverse impact on water flow in a natural waterbody,

(c) whether the development will increase the amount of stormwater run-off from a site,

(d) whether the development will incorporate on-site stormwater retention, infiltration or reuse,

(e) the impact of the development on the level and quality of the water table,

(f) the cumulative environmental impact of the development on the regulated catchment,

(g) whether the development makes adequate provision to protect the quality and quantity of ground water.

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures—

(a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

(b) the impact on water flow in a natural waterbody will be minimised.

…

28. The Addendum SEE at pages 2-3 and the Stormwater Review prepared by Martens & Associates Pty Ltd dated 14 February 2024 (Stormwater Review) at pages 10-11 detail that the Proposed Development will not have an adverse effect on the water quality, water flow, water table, regulated catchment and that it incorporates onsite stormwater retention and protects quality of groundwater. The Stormwater Review provides that the Proposed Development achieves a neutral or beneficial effect on water entering a natural waterbody and will not cause an adverse impact on water flow allowing the Court to reach the requisite state of satisfaction pursuant to s 6.6 of the Biodiversity and Conservation SEPP.

28. Section 6.7 of the Biodiversity and Conservation SEPP provides:

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the following—

(a) whether the development will have a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation,

(b) whether the development involves the clearing of riparian vegetation and, if so, whether the development will require—

(i) a controlled activity approval under the Water Management Act 2000, or

(ii) a permit under the Fisheries Management Act 1994,

(c) whether the development will minimise or avoid—

(i) the erosion of land abutting a natural waterbody, or

(ii) the sedimentation of a natural waterbody,

(d) whether the development will have an adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area,

(e) whether the development includes adequate safeguards and rehabilitation measures to protect aquatic ecology,

(f) if the development site adjoins a natural waterbody—whether additional measures are required to ensure a neutral or beneficial effect on the water quality of the waterbody.

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a) the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development,

(b) the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

(c) if a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained,

(d) the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised,

(e) the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

…

30. The Stormwater Review considers the items at s 6.7(1) and concludes at pages 10-11 that the Proposed Development will not impact aquatic animals or vegetation, will not impact aquatic reserves, does not require an approval or permit under the Water Management Act 2000 or the Fisheries Management Act 1994, will minimise the impact on erosion and sediment and is not located upstream from a wetland or littoral rainforest, allowing the Court to reach the requisite state of satisfaction pursuant to s 6.7(2) of the Biodiversity and Conservation SEPP.

31. Section 6.8 of the Biodiversity and Conservation SEPP relevantly provides as follows:

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems.

(2) Development consent must not be granted to development on flood liable land in a regulated catchment unless the consent authority is satisfied the development will not—

(a) if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or

(b) have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

32. Flood liable land is defined in the Biodiversity and Conservation SEPP at s 6.5 as follows:

flood liable land means land—

(a) susceptible to flooding by the probable maximum flood event, identified in accordance with the principles set out in the Flood Risk Management Manual, or

(b) identified in an environmental planning instrument as flood liable land.

33. The Stormwater Review at pages 12-13 provides that the Site is not located upstream of ecosystems which are benefitted by periodic flooding. The Court can be satisfied that s 6.8(1) has been considered.

34. The Addendum SEE and the Stormwater Review provides that the land is not flood liable land. Council's Floodplain Risk Management Study and Plan (10 November 2022) provides that the Site is not within a flood planning area, accordingly s 6.8(2) is not engaged.

35. Section 6.9 of the Biodiversity and Conservation SEPP provides as follows:

(1) In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider—

(a) the likely impact of the development on recreational land uses in the regulated catchment, and

(b) whether the development will maintain or improve public access to and around foreshores without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation.

(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a) the development will maintain or improve public access to and from natural waterbodies for recreational purposes, including fishing, swimming and boating, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation,

(b) new or existing points of public access between natural waterbodies and the site of the development will be stable and safe,

(c) if land forming part of the foreshore of a natural waterbody will be made available for public access as a result of the development but is not in public ownership—public access to and use of the land will be safeguarded.

…

36. The Stormwater Review provides at page 13 that the Proposed Development will not adversely affect recreational land use and the development is not located on or adjacent to foreshores and will not impact public access, satisfying s 6.9(1) and not engaging s 6.9(2).

37. 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. I adopt the reasons given by the parties if they are appropriate as set out in this judgment.

38. 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.

Notations:

39. The Court notes:

1. North Sydney Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA132/23 to incorporate the amended plans and additional reports listed at Condition A1 of Annexure A being as follows:

Plan No.	Date	Title	Prepared by
LEC.01 Rev C	30.11.23	Lower Ground Floor	Mathieson
LEC.02 Rev D	22.01.24	Ground Floor	Mathieson
LEC.03 Rev C	22.01.24	Level 1	Mathieson
LEC.04 Rev B	14.02.24	Compliance Diagram, cl 6.6(1)(a) Ground Floor	Mathieson
LEC.05 Rev D	23.01.24	Elevation	Mathieson
LEC.06 Rev C	07.03.24	West Elevations	Mathieson
LEC.07 Rev C	07.03.24	East Elevations	Mathieson
LEC.08 Rev C	23.01.24	Lot 1 Section	Mathieson
LEC.09 Rev B	14.02.24	Compliance Diagram, Coverage calculations	Mathieson
LEC.10 Rev C	07.03.24	External Finishes Schedule	Mathieson
LEC.11 Rev A	13.02.23	Roof Plan	Mathieson
LP01 Rev C	12.02.24	Landscape Plan Ground	Edwina Stuart
LP02 Rev C	12.02.24	Landscape Plan Level 1	Edwina Stuart
PS01 Rev C	12.02.24	Planting Schedule	Edwina Stuart
C100 Rev B	09.02.24	Stormwater Drainage Plan Lower Ground Floor	Xavier Knight
C101 Rev C	09.02.24	Stormwater Drainage Plan Ground Floor	Xavier Knight
C102 Rev D	09.02.24	Stormwater Drainage Plan Level 1	Xavier Knight
C150 Rev B	09.02.24	Catchment Area Plan	Xavier Knight
C200 Rev B	09.02.24	Stormwater Drainage Details	Xavier Knight
C300 Rev C	09.02.24	Sediment and Erosion Control Plan	Xavier Knight
C300 Rev B	09.02.24	Sediment and Erosion Control Details	Xavier Knight
C101 Rev B	20.12.22	Drainage and Tree Protection Zone	Xavier Knight
C102 Rev C	13.03.23	Drainage and Tree Protection Zone	Xavier Knight

Date	Report	Prepared by
20.03.23	Arboricultural Impact Assessment	Complete Arborcare
14.02.24	Preliminary Site Investigation	JBS&G Australia
14.02.24	Stormwater Review	Martens & Associates

2. The Applicant provided an amended BASIX Certificate, an updated survey plan, and an amended Clause 4.6 request to the Court by 1 March 2024;

3. The Applicant obtained a subdivision certificate in accordance with Development Consent No 237/18 dated 16 November 2018 (as amended by Modification Application No 236/18/4 determined on 7 May 2024) from the Respondent by 13 May 2024; and

4. The plan of subdivision was registered with the NSW Land Registry Services and created Lot 1 and Lot 2 in Deposited Plan 1300297.

Orders:

40. The Court orders:

1. The clause 4.6 written request prepared by The Planning Studio is upheld.

2. The appeal is upheld.

3. Development Application No DA132/2023 lodged on 5 May 2023, as amended, for the construction of 2 dual occupancy dwellings on 2 lots (1 dual occupancy dwelling per lot) for a total of four dwellings across the two lots at 11 and 13 Bennett Street, Cremorne, legally described as Lot 1 and Lot 2 in Deposited Plan 1300297 (Site), is determined by the grant of consent subject to conditions at Annexure A.

E Espinosa

Commissioner of the Court

213700.23 Annexure A

**********

Decision last updated: 07 June 2024