McCusker v North Sydney Council

[2024] NSWLEC 1203

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCusker v North Sydney Council [2024] NSWLEC 1203

Hearing dates:

Conciliation conference held on 5 and 8 April 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA325/23, seeking consent for the demolition of the southern and eastern verandah of the existing dwelling known as “Bovington” at 66 Shellcove Road, Neutral Bay is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of a verandah to a heritage item – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, Sch 7, s 38

North Sydney Local Environmental Plan 2013 Sch 5, cll 2.7, 5.10, 6.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

Category:

Principal judgment

Parties:

Anne McCusker (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A McCusker (Self-represented) (Applicant)
C Morton (Respondent)

Solicitors:
Sparke Helmore (Respondent)

File Number(s):

2024/51440

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal of development application DA325/23 which seeks consent for the demolition of the southern and eastern ground floor verandahs of an existing detached dwelling house, and the construction of a new ground floor porch and access steps at 66 Shellcove Road Neutral Bay, legally described as Lot 1 in DP 791424 (the subject site).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The dwelling house, known as ‘Bovington’ is a local heritage item listed under Sch 5 of the North Sydney Local Environmental Plan 2013 (NSLEP) and is within the Cremorne Heritage Conservation Area.

4. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 and 8 April 2024, over which I presided.

5. 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 consent to the development application subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 and explained how they have been satisfied. From this I note the following points.

8. The development application was made with the consent of the owner of the land at the subject site.

9. The application was appropriately notified by the Respondent, during which time three submissions were made. The parties submit, and I accept, that the matters raised in these submissions have been considered and where appropriate, addressed in the amended plans that are now before the Court.

10. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated and if so, whether the site will be suitable for the intended purpose following remediation. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the subject site has been historically used for residential purposes, however as per the Hazardous Materials Assessment by Econ Environmental dated 23 February 2023, some contamination is evident in the soil below the verandah structure and in some of the paint on the structure itself. Accordingly, and as per the recommendations of Econ Environmental, conditions of consent regarding remediation have been incorporated into Annexure A of the parties’ agreement. Subsequently, I accept the parties’ submission that following the necessary remediation the subject site will be suitable for its intended purpose.

11. I note the proposed development does not include the removal of any vegetation, and is considered to be BASIX Exempt Development as defined in Sch 7 of the Environmental Planning and Assessment Regulation 2021.

12. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP) applies to the site. Accordingly, the parties submit and I accept that the proposed development will not adversely affect the scenic, ecological or water quality of Sydney Harbour and its waterways, and that the proposed development is acceptable with regard to the relevant provisions of Ch 6 of this SEPP.

13. Pursuant to the NSLEP, the site is zoned R2 Low Density Residential, within which development for the purposes of a dwelling house is permissible. The parties submit and I accept that the proposed development meets the objectives of this zone.

14. NSLEP cl 2.7 provides for demolition, which is permissible with consent.

15. I note that the proposal has no impact on height or floor space.

16. NSLEP cl 5.10 requires me to consider the effect of the proposed development on the heritage significance of the item. The verandah that is proposed for demolition has been identified by Ms Holtham, the parties’ single heritage expert, as contributing to the significance of the heritage dwelling. I have considered the effect of the proposed development on the heritage item, and note that the detrimental impact on that significance is the removal of this verandah. I am not required to determine the merit of this application. The parties have reached agreement that this impact is acceptable.

17. The proposed development includes some minor earthworks. I have considered the matters listed for consideration in NSLEP cl 6.10 and based on the parties’ submission, I accept that the earthworks in the proposed development are acceptable when considered against these matters.

18. For these reasons, 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.

19. 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.

20. The Court notes that:

1. North Sydney Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA325/23 to rely upon the following plans:

Plan No.	Revision	Title	Drawn by	Date
03	C	Proposed Site Plan	G2P Architectural Designs	05/04/2024
08	C	Proposed Ground Floor Plan	G2P Architectural Designs	05/04/2024
08A	C	Ground Floor Demolition Plan	G2P Architectural Designs	05/04/2024
09	C	Proposed First Floor Plan	G2P Architectural Designs	05/04/2024
09A	C	First Floor Demolition Plan	G2P Architectural Designs	05/04/2024
10	C	Proposed Front & Right Elevation	G2P Architectural Designs	05/04/2024
10A	C	Demolition Front & Right Elevation	G2P Architectural Designs	05/04/2024
11	C	Proposed Rear and Left Elevation	G2P Architectural Designs	05/04/2024
11A	C	Demolition Rear and Left Elevation	G2P Architectural Designs	05/04/2024

2. The parties agree that within 6 months of the making of these orders by the Court, the Applicant is to submit a development application to the Respondent Council, seeking consent for the redesign and reinstatement of the southern and eastern verandah of the existing dwelling.

21. The Court orders:

1. The appeal is upheld.

2. Development Application DA325/23, seeking consent for the demolition of the southern and eastern verandah of the existing dwelling known as “Bovington” at 66 Shellcove Road, Neutral Bay is determined by the grant of development consent subject to the conditions in Annexure A.

E Washington

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 19 April 2024