Lim v North Sydney Council

[2021] NSWLEC 1531

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lim v North Sydney Council [2021] NSWLEC 1531

Hearing dates:

Conciliation conference on 7 September 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA9/21 for the construction of alterations and additions to an existing dwelling, removal of existing shed in rear yard, construction of bi-fold gates at rear frontage, and associated works at 46 Burlington Street, Crows Nest is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement reached

Legislation Cited:

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

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

North Sydney Local Environmental Plan 2013, cll 2.3, 5.10, 6.10

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

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Eric Young Aun Lim (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
T Sattler (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Sattler and Associates (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/123657

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against North Sydney Council's refusal of development application DA9/2021 (DA).

2. After amendments, the DA seeks consent for alterations and additions to an existing dwelling, removal of existing shed in rear yard, construction of bi-fold gates at rear frontage, and associated works at 46 Burlington Street, Crows Nest (site).

3. On 7 September 2021, the Court arranged a mandatory conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. 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 them. The decision agreed upon would uphold the appeal and have the Court exercise the function under s 4.16(1) of the EPA Act to grant consent to the development application in accordance with agreed conditions.

4. The parties submit that the decision is one 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), and provided a jurisdictional statement to that effect. I agree with this submission of the parties, and address the jurisdictional tests in regard to the application as indicated below.

5. In regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), I note and accept the advice that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. The requirements are met.

6. In regard to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate has been provided.

7. In regard to Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005: I am satisfied with the advice of the parties that no concerns arise.

8. In regard to North Sydney Local Environmental Plan 2013 (NSLEP):

• The site falls within the R2 Low Density zone. The proposal is permissible within the zone. I have had regard to the zone objectives in accordance with the requirements of cl 2.3.

• The proposal does not contravene any development standards.

• The site is situated within the Holtermann Estate B Heritage Conservation Area. Mindful of cl 5.10(4), I have considered the effect of the proposed development on the heritage significance of the HCA, and note Council is satisfied with the proposal as amended.

• I have considered the relevant matters listed at cl 6.10 in regard to earthworks. I am also advised the site is outside of the Council’s mapped areas defined as “Class 1” to “Class 5” and as a result there is no need for an acid sulphate assessment or management plan.

9. Under s 4.15(1)(d) of the EPA Act, I must take into consideration lay submissions. Council has provided a copy of the six written objections it received. The original proposal, as notified, included a first floor extension which was a considerable source of complaint. This element has been removed with the amendments. Council indicated it had advised the objectors of the opportunity to make submissions to the conference, but none had sought to. Council advised that the objectors indicated their concerns had been addressed with the amendments to the application. The requirements of s 4.15(1)(d) of the EPA Act are satisfied.

10. In regard to the amendments to the application, the Court notes the advice of the parties that:

• Council has agreed to the amendments proposed by the Applicant to incorporate the following:

1. The architectural plans revision B drawn by Peter Princi Architect being DA01, DA02, DA03, DA04, DA05, DA06 and DAO7 - dated August 2021.

2. Supplemental Statement of Environmental Effects dated 2 September 2021.

3. Amended Basix certificate No. A386278 02 (b).

• Council uploaded the above documents onto the NSW Planning Portal on 1 September 2021.

• The Applicant filed the amended development application with the Court on 6 September 2021.

11. Based on the material outlined above, 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. In turn I am required to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders which follow do so.

12. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA9/21 for the construction of alterations and additions to an existing dwelling, removal of existing shed in rear yard, construction of bi-fold gates at rear frontage, and associated works at 46 Burlington Street, Crows Nest is approved subject to the conditions in Annexure A.

……………………………

P Walsh

Commissioner of the Court

Annexure A (272187, pdf)

Architectural Plans (604846, pdf)

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Decision last updated: 14 September 2021