Etherington v North Sydney Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Etherington v North Sydney Council [2021] NSWLEC 1324

Hearing dates:

3 - 4 May 2021

Date of orders:

07 June 2021

Decision date:

07 June 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application DA56/20 for the demolition of an existing dwelling and garage and the construction of a new dwelling and double garage, with associated tree removal and earthworks on the land at 58 Cowdroy Avenue, Cammeray, is determined by way of refusal.

(3) The exhibits are returned, with the exception of Exhibits 1, A, B, D, E and F.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – clause 4.6 request

Legislation Cited:

North Sydney Local Environmental Plan 2013 cll 2.3, 4.3, 4.4, 4.6, 6.9, 6.10

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy No 19—Bushland in Urban Areas

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cll 3, 12(2), 13(f)14(d), 16, 17, 20, 25, 26

Cases Cited:

Abrams v Council of the City of Sydney [2019] NSWLEC 1583

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007 NSWLEC 827

Texts Cited:

North Sydney Development Control Plan 2013

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

Category:

Principal judgment

Parties:

Renata Agnieszka Etherington (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Etheringtons Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/277618

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the Council’s actual refusal of development application DA56/20, lodged on 17 March 2020 for the demolition of an existing dwelling and construction of a new dwelling with associated tree removal and earthworks at Lot 33 DP 8933, 58 Cowdroy Avenue, Cammeray (the subject site).

2. The Class 1 appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EP&A Act) and is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The proposed dwelling breaches the height control set by the North Sydney Local Environmental Plan 2013 (NSLEP), and the Applicant relies on a request to vary this height control, pursuant to cl 4.6 of the NSLEP. Amongst other contentions, the Respondent contends that the written cl 4.6 Variation Request (cl 4.6 written request) is inadequate.

4. For the following reasons I have determined that the written cl 4.6 written request is inadequate and that the appeal should be dismissed.

Background to the appeal

5. The appeal was listed for conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which commenced on site on 3 May 2021. At this site view I had the opportunity to view the…