Etherington v North Sydney Council

[2025] NSWLEC 1444

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 unacceptable increase in site cover and unbuilt upon area.

The site and its context

4. The site is on the northern side of Cowdroy Avenue, with steep topography falling from the southern street boundary to the northern shoreline boundary by approximately 22m. The site is irregular in shape with a total area of 556m².

5. The site has street access to Cowdroy Avenue and Folly Point.

6. The approved development includes a lower level floor plan, a mid-level floor plan, an upper level floor plan; an upper level floor plan + 3m; and an entry level floor plan.

7. Construction on the site has commenced.

Background

8. The original development consent for the demolition of existing structures, and construction of a dwelling house and associated works, was granted on 3 May 2023 by the North Sydney Local Planning Panel. The development consent included a deferred commencement condition requiring changes to be made to the plans and documents (Ex 3, tab 2). The changes required to be made to the plans and documents included lowering the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool. The Council confirmed that the deferred commencement condition had been satisfied, and the consent was operable, on 14 November 2023 (Ex 3, tab 3).

9. The changed plans included the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool at a height of RL10.10.

10. Modification Application No. 60/22/2 was lodged on 3 July 2024.

11. The Development Consent No. 60/22 was modified by Modification Application No. 60/22/2 on 10 December 2024 (Ex 3, tab 12) subject to a number of design changes which included:

• deleting the garage;

• deleting the pergola above the terrace on the upper level floor plan; and

• maintaining the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool at a height of RL10.10.

Planning framework

12. The application was made pursuant to s 4.55(2) of the EPA Act. Under s 4.55(2)(a), the consent authority must be satisfied that the development to which the consent as modified relates is the same or substantially same development for which consent was originally granted.

13. The site is zoned C4 Environmental Living pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013). Dwelling houses are a nominate permissible use with consent in the C4 zone. The objectives of the C4 zone, to which regard must be had, are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To ensure that a high level of residential amenity is achieved and maintained.

14. The height of buildings development standard for the site is 8.5m, pursuant to cl 4.3 of LEP 2013. There is no floor space ratio development standard for the site.

15. The North Sydney Development Control Plan (DCP) applies to the site at section 1.2 and relevantly includes the following provisions:

• Development should be designed to maximise the sharing of views from surrounding properties and public places, at section 1.3.6.

• The front setback must match the alignment of the primary facades of buildings on adjoining properties, at section 1.4.6.

• The site coverage for the lot size is 40% at section 1.5.5. Site coverage includes garages and carport but excludes driveways and hard stand areas.

• The objectives for swimming pools and spas include to minimise the visual impact of swimming pools and spas, at section 1.5.10.

Public submissions

16. Two objectors gave evidence at the commencement of the conciliation onsite. The eastern neighbour is content that there is a negotiated agreement for privacy screens on the eastern side of the approved development. The western neighbour is concerned that the proposed additions will increase the already oversized bulk and scale of the approved development and interfere with their amenity and views of the bay.

Expert evidence

17. The applicant relied on the expert evidence of Larissa Brennan (town planner) and John Aspinall (visual impact consultant).

18. The Council relied on the expert evidence of John McFadden (town planning).

19. The experts prepared a joint report (Ex 5) and gave oral evidence.

The proposal is substantially the same development as the development for which consent was originally granted

20. Pursuant to s 4.55(2)(a) of the EPA Act, consent authority, or the court exercising the functions of the consent authority, must be satisfied that the modified development is substantially the same development as the development for which consent was originally granted. I am satisfied that the proposal is substantially the same development as the originally approved development in a quantitative sense. The originally approved development was for demolition and construction of a dwelling house and swimming pool, including site works. The proposal is for a two-car garage structure over the approved hardstand area, the addition of an operable metal pergola over the approved terrace on the upper-level floor plan and the raising of swimming pool coping level, retaining walls and planter beds surrounding the swimming pool. The resulting development proposed by the modification is not a radical transformation from that originally approved. In a qualitative sense, the proposal does not impact on the essence of the approved original development, which will remain as a dwelling house for a single-family unit.

The proposed garage

21. The proposed two-car garage is adjacent to the street, with a flat roof, an internal floor to ceiling height of 2.65m and internal dimensions of 7m x 7m. The garage has a side setback of 900mm from the western boundary, allowing a glimpse of the bay from the street between the proposed garage and the existing dwelling at 56 Cowdroy Avenue. I am satisfied that the proposed garage does not result in any meaningful view loss from the public domain.

22. The garage floor is approximately at the street level on the southern side, however, it is significantly raised above the existing ground level on the northern side of the garage as a result of the steep slope of the site. I accept the applicant’s submission that the proposed garage is reasonably scaled with a flat roof and is in the only location possible for off-street parking on this steeply sloping site.

23. The overshadowing impact of the proposed garage on a portion of the eastern elevation of the western neighbour at 56 Cowdroy Avenue is reasonable and consistent with the pattern and built form along the lower side of Cowdroy Avenue. I accept the applicant’s submission that it is a reasonable expectation to have a two-car secure garage on this suburban site. I am satisfied that the proposed garage is generally consistent with the location and proportions of garages on the low side and the streetscape of Cowdroy Avenue.

24. The proposed garage does not unreasonably add to the bulk and scale of the approved development, nor does it impact on the bulk and scale of the approved development when viewed from the bay.

The proposed pergola

25. The top of the pergola is at RL20.3 across the entire terrace, 2.35m above the 8.5m height of buildings development standard (Drawing Nos 110 and 111 Rev B, Exh B, tab 1). The pergola is 4.45m deep and 9.07m wide. It is 3.3m above the finished floor level of the terrace at RL17.0.

26. The living areas at 56 Cowdroy Avenue are at RL19.25, so eye level in a standing position is approximately RL20.85. The proposed pergola is extensive in area and at a height which will have the appearance of a flat roof when viewed from the living areas of 56 Cowdroy Avenue because it is just below eye level in a standing position. The proposed pergola results in an unreasonable impact on views of the bay towards the north-east/east from the living areas and terrace of 56 Cowdroy Avenue.

27. I accept the applicant’s submission that it is reasonable to expect some weather cover over the terrace, however, the pergola should be carefully positioned over a part of the terrace to minimise the impact on views from the neighbour’s living areas, given that the level of the pergola is well above the height of buildings development standard.

28. The proposed pergola unreasonably adds to the bulk and scale of the approved development when viewed from the bay.

The proposed raised level of the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool

29. The proposal is to raise the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool by 900mm from RL10.10 to RL11.0.

30. The impact of raising the level of the swimming pool and surrounding structures is exacerbated by the north-south orientation of the swimming pool, as the approved northern end of the pool is already substantially above the existing ground level when viewed from the bay. A further increase in the height of the swimming pool and surrounding structures would unreasonably elevate the structures high above the existing topography of the site and is not an appropriate landscape treatment in response to the constraints of the site.

31. The raising of the swimming pool would have a detrimental effect on the amenity of the rear yard at 56 Cowdroy Avenue because the proposal is unsympathetic to the topography of the site and as a consequence, it would be a visual intrusion when viewed from the rear yard of 56 Cowdroy Avenue.

Conclusion

32. I am satisfied that the proposal is substantially the same development as the development for which consent was originally granted, pursuant to s 4.55(2)(a) of the EPA Act.

33. The proposed two-car garage structure is acceptable.

34. I am satisfied that the Council’s contentions regarding the unreasonableness of the size and position of the proposed pergola, and raising of the level of the swimming pool and surrounding structures, are made out by the evidence before me.

Orders

35. The orders of the Court are:

1. The appeal is dismissed.

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

Susan O’Neill

Commissioner of the Court

**********

Amendments

25 June 2025 - Representation is corrected on the coversheet and numbering is fixed.

Decision last updated: 25 June 2025