Kiel v North Sydney Council

[2023] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kiel v North Sydney Council [2023] NSWLEC 1574

Hearing dates:

Conciliation conference held on 21 and 22 September 2023

Date of orders:

03 October 2023

Decision date:

03 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)    Development Application DA380/22, as amended, seeking construction an open elevated parking platform within the front setback of an existing semi-detached dwelling and new fencing on Lot 1 Deposited Plan 541517, also known as 24 Premier Street, Neutral Bay is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of an elevated carpark structure – appropriate landscaping – conciliation conference– agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38

Land and Environment Court Act 1979, ss 34, 34AA

North Sydney Local Environmental Plan 2013, cl 2.3

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

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Thomas Kiel (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Astil (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Respondent)

File Number(s):

2023/169659

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA380/22 by the North Sydney Council (the Council) seeking construction of an elevated car space structure in the front setback on Lot 1 Deposited Plan 541517, also known as 24 Premier Street, Neutral Bay (hereafter the site).

Background

2. Development Application DA380/22 (the DA) was lodged with Council on 8 December 2022, with two written submissions received during the notification period. After internal review, the DA was refused, as determined on 5 April 2023.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person. One resident provided oral submission at the start of the conciliation. The issues raised were consistent with the written submissions provided during the notification period.

5. The Council agreed for the applicant to provide a landscape plan including fencing and pavement treatment that will support and amend the application, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and that the relevant issues raised by the adjoining residents have been considered.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA380/22, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. North Sydney Local Environmental Plan 2013 (NSLEP):

1. Pursuant to cl 2.3 of the NSLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone.

2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the NSLEP.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as a residence and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience.

3. North Sydney Development Control Plan 2013 (NSDCP):

1. The relevant requirements of the NSDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent.

2. The original application was publicly notified in accordance with the NSDCP, and the two submissions received have been considered in the Council’s merit assessment of the application, and where appropriate, issues are addressed.

3. The Council agrees that the contentions that relate to the NSDCP are resolved by amendments to the application and provision of documents that support the application. The proposed development is assessed as not causing adverse visual impacts to adjoining properties or in the streetscape.

9. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application.

Grant of consent

10. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submission.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA380/22 should be determined by the grant of consent, as it satisfies the relevant requirements of s 4.15(1) of the EPA Act.

13. As the parties' agreement 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.

14. The Court notes that:

1. The North Sydney Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant to amend Development Application DA380/22, as described below:

Revision	Title	Drawn by	Dated
1	Landscape Planting Plan	McIntosh & Phelps	22/09/2023

2. The applicant has filed the plan that amends Development Application DA380/22 with the Court on 22 September 2023.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA380/22, as amended, seeking construction an open elevated parking platform within the front setback of an existing semi-detached dwelling with new fencing and landscaping on Lot 1 Deposited Plan 541517, also known as 24 Premier Street, Neutral Bay is determined by the grant of consent, and subject to the conditions set out in Annexure A.

…………………………

S Bish

Commissioner of the Court

Annexure A (261725, pdf)

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Decision last updated: 03 October 2023