Grafton Property Group Pty Ltd v North Sydney Council

[2019] NSWLEC 1439

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Grafton Property Group Pty Ltd v North Sydney Council [2019] NSWLEC 1439
Hearing dates:	Conciliation conference on 13 September 2019
Date of orders:	17 September 2019
Decision date:	17 September 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure “A” hereto. (2)   The appeal is upheld. (3)   Development Application D 74/2018 for demolition of existing structures and construction of a dual occupancy with a single garage per dwelling at 24 Milner Crescent, Wollstonecraft is approved subject to the conditions contained in Annexure “A” hereto.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Uniform Civil Procedure Rules 2005
Texts Cited:	North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Grafton Property Group Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) C Drury (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Sparke Helmore (Respondent)
File Number(s):	2018/393609
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against North Sydney Council's deemed refusal of Development Application No. D74/18 for a dual occupancy development and associated work at 24 Milner Crescent, Wollstonecraft (‘site’).

2. The original application was not supported by Council for grounds including: streetscape presentation (in particular a provision in North Sydney Local Environmental Plan 2013 (‘LEP’) that dual occupancy development form appear as a dwelling house), excessive height bulk and scale and associated amenity impacts (the proposal original involved a breach of applicable height controls), earthworks landscaping and tree removal (including effects on existing vegetation on a neighbouring property) and visual privacy. Objections from neighbours reflected these concerns. The proposal was subject to numerous exchanges between the parties, with some additional notification to neighbours. The amendments were such that Council has determined that it is satisfied that the now amended proposal (shown in plans dated 26 July 2019) achieves an acceptable response to the Council’s contentions.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 13 September 2019, and at which I presided. At the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. They also explained to me the path of the application, providing an explanation on the response to the contentions and lay objections.

4. The parties’ decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

Jurisdiction

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised that there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. In terms of jurisdiction, the parties advise that:

1. The proposal is permissible on the site and complies with development standards contained in the LEP. Tests in regard to minimum subdivision lot size (cl 4.1), stormwater and water sensitive design (cl 6.2), earthworks (cl 6.10) and vehicular access (cl 6.13) are all adequately satisfied.

2. In regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (and what is termed the “draft Remediation SEPP”), Council has undertaken an assessment of the site and concluded that the site was unlikely to have been used for a potentially contaminating activity. A condition is included in regard to future demolition works and management of asbestos contamination (Condition C21). On the basis of Council’s assessment and its decision to support the proposal, I am satisfied that the question of contamination is adequately considered.

3. The site band is adjacent to a rail corridor and State Environmental Planning Policy (Infrastructure) 2007 (‘SEPP Infrastructure’) is triggered. The required processes have been followed and the requirements of SEPP Infrastructure have been adequately addressed through the inclusion of proposed Condition C23. I have reviewed this proposed consent condition and am satisfied in regard to SEPP Infrastructure.

7. I further note that there has been consideration of submissions in accordance with the requirements of s 4.15(1)(d).

8. 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.

9. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure “A” hereto.

2. The appeal is upheld.

3. Development Application D 74/2018 for demolition of existing structures and construction of a dual occupancy with a single garage per dwelling at 24 Milner Crescent, Wollstonecraft is approved subject to the conditions contained in Annexure “A” hereto.

Addendum made on 3 October 2019

10. The Respondent has drawn to the Court’s attention the particulars of the notification of amending plans. The Court granted leave for the application to be amended on 20 February 2019. The relevant (amended) plans were notified by the Respondent to surrounding residents (including the neighbours to the development site). The Respondent, in its discretion (and reasonably in my view), elected not to notify the amended plans received on 26 July 2019 (consistent with North Sydney Development Control Plan 2013, cl 4.5). The third sentence to [2] above might be interpreted to mean that all amending plans were notified. It is appropriate to amend this sentence for the purposes of clarification.

11. I am satisfied that this is an accidental slip that can be amended under Uniform Civil Procedure Rules 2005 (UCPR) r 36.17, which allows a correction of a “clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order.” Accordingly, I make orders in chambers as follows:

1. Pursuant to UCPR 36.17, the decision in these proceedings, published on 17 September 2019, be varied so that the third sentence at [2], which currently reads:

“The proposal was subject to numerous exchanges between the parties, including further notification to neighbours as amendments were brought forward.”

be amended to read as follows:

“The proposal was subject to numerous exchanges between the parties, with some additional notification to neighbours.”

………………………………

P Walsh

Commissioner of the Court

Annexure A (213 KB, pdf)

Plans (6.15 MB, pdf)

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Amendments

03 October 2019 - See Addendum at [10]-[11]

Decision last updated: 03 October 2019