Etherington v North Sydney Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Etherington v North Sydney Council [2025] NSWLEC 1444

Hearing dates:

12 and 13 June 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.

(2) The exhibits, other than Exhibits 2, A and C, are returned.

Catchwords:

MODIFICATION APPLICATION – appeal against the terms of a modified development consent – proposal to add a garage structure, a pergola over an approved terrace and to raise the level of the swimming pool and surrounding structures

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

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

Environmental Planning and Assessment Regulation 2021, s 113

North Sydney Local Environmental Plan 2013 , cl 4.3

Texts Cited:

North Sydney Development Control Plan

Category:

Principal judgment

Parties:

Renata Etherington (First Applicant)
Paul Martin Etherington (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
P Tomasetti SC with J Y Li (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Etherington Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/459523

Publication restriction:

Nil

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 terms of Modification Application No. 60/22/2 modifying Development Consent No. 60/22 (the approved development). The site is 58 Cowdroy Avenue, Cammeray (Lot 33 in DP 8933). The applicant seeks to make the following changes to the approved development:

• Adding a two-car garage enclosure (over an approved turntable and hardstand parking area) at the street front of the site;

• adding a metal louvred pergola 3.3m above the approved terrace at RL 17.0; 4.45m deep and 9.07m wide; and

• raising the level of the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool by 900mm.

2. The appeal was subject to conciliation, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

3. The Council’s contentions can be summarised as:

1. The development is not substantially the same development as the development for which the original consent was granted because the proposed pergola exceeds the height of buildings development standard, the application proposes a considerable increase in building footprint and bulk by the provision of a double garage and the proposal unreasonable increases adverse privacy and amenity impact on the residents of the dwelling located at 56 Cowdroy Avenue.

2. The height of the proposed pergola is 2.63m above the 8.5m height of buildings development standard and it will have unacceptable adverse impacts on the adjoining residential amenity.

3. The garage, pergola and raising of the level of the swimming pool coping would result in unacceptable view loss and amenity impacts.

4. The proposal increases the bulk of the building and causes…