Gourley v North Sydney Council

[2023] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gourley v North Sydney Council [2023] NSWLEC 1106

Hearing dates:

Conciliation Conference 16 February 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

(1) The Appeal is upheld.

(2) Development Application DA63/22 for the demolition of the existing building and the construction of a new dwelling house at 89 Colin Street, Cammeray NSW 2062, is granted development consent subject to conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPEAL – residential development – heritage - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

North Sydney Local Environmental Plan 2013, Sch 5, Pt 2, cll 2.3, 2.7, 4.3, 5.10, 6.10, 6.13

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Odette Gourley (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
K Law (Solicitor)(Respondent)

Solicitors:
Matthews Folbigg Solicitors (Respondent)

File Number(s):

22/282437

Publication restriction:

Nil

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 D63/22 for demolition of an existing detached dwelling and the construction of a new detached dwelling and associated works including basement car parking and landscaping (the Proposed Development) at 89 Colin Street, Cammeray and is legally described as Lot 24 DP2407 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 February 2023. I have presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

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

6. 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 the North Sydney Local Environmental Plan 2013 (NSLEP) and various provisions of state environmental planning policies. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed joint jurisdictional note.

7. The Development Application was made with written consent of the owner of the Site.

8. The NSLEP contains a number of provisions which include jurisdictional prerequisites to be satisfied prior to the granting of development consent.

9. The Site is zoned R2 Low Density Residential pursuant to the NSLEP Land Use Table and in such a zone dwelling houses are permitted with consent. Clause 2.3 of the NSLEP requires that regard be had to the zone objectives and the parties agree that the Proposed Development is compatible with the R2 Low Density zone objectives which are as follows:

“To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

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

10. Demolition of a building may be carried out only with development consent (cl 2.7 NSLEP) and development for the purposes of a driveway and vehicular crossing within a road reserve associated with a permissible use in an adjoining zone may be carried out with development consent (cl 6.13 NSLEP).

11. The maximum permissible building height is 8.5m (cl 4.3 NSLEP). The proposed dwelling extends to a maximum height of 8.45m and does not contravene this development standard.

12. Heritage conservation is provided for in cl 5.10 of the NSLEP. The Proposed Development is not identified as a heritage item and has no heritage items in the vicinity of the Site however the Site is located at the northern edge of the Plateau Conservation Area (CA02) as identified in Schedule 5, Part 2 of the NSLEP 2013. Further, the Site is located in the Plateau Conservation Area within the Cammeray Planning Area in Part C, Section 4 of the North Sydney Development Control Plan 2013 (NSDCP). A Joint Heritage Expert Report (JHER) was prepared by John Oultram, for the Applicant, and Samantha Polkinghorne, for the Respondent, and filed with the Court on 20 December 2022. I note the experts’ agreement as follows:

1. The current house was built in 1927 and makes little contribution to the conservation area;

2. A court approved development application is in place for the redevelopment of the property under DA311/2016 including the demolition of the current house; and

3. Based on the revised drawings, the Proposed Development satisfies the heritage contentions for the reasons noted in the JHER and the Proposed Development will have an acceptable impact on the established significance of the conservation area.

13. The parties agree that the amended plans dated 14 December 2022 satisfy the functions of the Plateau Conservation area.

14. In accordance with cl 6.10 of the NSLEP in relation to earthworks, the application is accompanied by a Geotechnical Site Investigation prepared by Crozier Geotechnical Consultants (GSI) dated 21 February 2022 which assessed the proposed earthworks and stated the following:

“Provided the recommendations of this report and any future geotechnical directive are implemented, the proposed development can be maintained with negligible impact to neighbouring or site structures as such the site is considered suitable for the proposed construction works provided that the recommendations outlined in this report are followed.”

15. The recommendations included in the GSI are included in the Conditions of Consent at E5, which require specific excavation methods to be used when conducting the excavations for the Proposed Development.

16. The site does not have a frontage to the harbour or its foreshores therefore the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 do not apply.

17. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, if the land is contaminated if the land is suitable, and if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, if it is satisfied that the land will be remediated before the land is used for that purpose. I have considered the Statement of Environmental Effects (SEE) prepared by James Lovell and Associates dated 22 February 2022, filed with the Class 1, there is no evidence to suggest the land is likely to be contaminated. The SEE concludes as follows:

“(i) The site has an established history of residential zoning and use, and evidently has not been zoned or used for industrial, agricultural or defence purposes at any times in the lands recent history. In the circumstances, there is no evidence to suggest that the land is likely to be contaminated to the extent that would render it unsuitable for continued residential use.”

18. The original Development Application was notified by council between 11 March 2022 and 25 March 2022. One submission was received and was considered by Council. The amended Development Application was notified to the objector on 21 December 2022, and a response was received from the objector on 15 January 2023. The objector continued to have concerns relating to the glare of the solar panels. The Respondent has considered the objector’s concerns and considers that the 15-degree angle of the solar panels included in drawing number 311, dated 14 December 2022 (rev 2), addresses this concern. In addition, the conditions include a requirement for a screen to be placed on the southern side of the solar panels at a height 100mm higher than the solar panels to provide visible amenity to the objector.

19. 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 as set out in this judgment.

20. 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:

21. The Court notes:

1. North Sydney Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending DA63/22 to rely on the following documents:

1. Cover and Location Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

2. Site Analysis Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

3. Lower Ground Floor Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

4. Ground Floor Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

5. First Floor Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

6. Roof Plan (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

7. East Elevation (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

8. South Elevation (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

9. West Elevation (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

10. North Elevation (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

11. Sections A, B and C (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

12. Sections D, E and F (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

13. View Diagrams (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

14. Schedule of Materials and Finishes (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

15. Compliance Diagram (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

16. Swept Paths Analysis (Rev 2) prepared by Peter Stutchbury Architecture and dated 14 December 2022.

17. Survey prepared by Adam Clerke Surveyors Pty Ltd dated 22 November 2022.

18. BASIX Certificate prepared by Peter Stutchbury Architecture dated 3 February 2023.

2. The amending documents were filed with the Court on 15 February 2023.

Orders:

22. The Court orders:

1. The Appeal is upheld.

2. Development Application DA63/22 for the demolition of the existing building and the construction of a new dwelling house at 89 Colin Street, Cammeray NSW 2062, is granted development consent subject to conditions set out in Annexure “A” to this agreement.

……………………….

E Espinosa

Commissioner of the Court

282437.22 Annexure A (507541, pdf)

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Decision last updated: 10 March 2023