Fung v North Sydney Council

[2022] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fung v North Sydney Council [2022] NSWLEC 1193

Hearing dates:

Conciliation conference on 4 April 2022

Date of orders:

12 April 2022

Decision date:

12 April 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. D177/21 for the construction of a new garage and associated landscaping works at 68 Albany Street, Crows Nest (Lot No.: B DP: 442085), subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – garage to dwelling – conciliation conference – agreement reached – condition requiring changes to materials and finishes – condition requiring reduction in height of wall – orders made

Legislation Cited:

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

Land and Environment Court Act 1979 s 34, 34AA

North Sydney Local Environmental Plan 2013

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Anthony Fung (First Applicant)
Rezana Karim (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
L Saw (Applicants)
K Law (Solicitor) (Respondent)

Solicitors:
Chamberlains Law Firm (Applicants)
Matthews Folbigg Lawyers (Respondent)

File Number(s):

2021/321903

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a new garage and associated works at 68 Albany Street, Crows Nest, which was refused by North Sydney Council on 17 August 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 4 April 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 5 April 2022, following an agreement on conditions of consent that require an amended schedule of external finishes and materials to be prepared and submitted to the Council (condition A4), and a reduction in the height of the rear boundary wall and pedestrian entry gate to the west of the garage façade to a maximum height of 2m (condition A5). These conditions were agreed upon as a consequence of the joint report by the town planners on 31 March 2022.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement dated 4 April 2022, which sets out the history of the development application and the nature of amendments made prior to the conciliation in the course of the appeal proceedings.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R4 High Density Residential Zone pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP).

• The proposed development complies with the applicable height development standard in the NSLEP.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. D177/21 for the construction of a new garage and associated landscaping works at 68 Albany Street, Crows Nest (Lot No.: B DP: 442085), subject to the conditions set out in Annexure A.

………………………

J Gray

Commissioner of the Court

Annexure A (338880, pdf)

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Decision last updated: 12 April 2022