McGeachie v North Sydney Council

[2021] NSWLEC 1441

Land and Environment Court

New South Wales

Medium Neutral Citation:

McGeachie v North Sydney Council [2021] NSWLEC 1441

Hearing dates:

Conciliation conference 17, 18 June; 5, 6 and 16 July 2021

Date of orders:

3 August 2021

Decision date:

03 August 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Modification Application 306/18/3 to modify Development Consent DA 306/18 is approved, subject to the conditions of consent set out in Annexures “A” and “B”.

Catchwords:

DEVELOPMENT APPEAL – residential – appeal against condition imposed in modification application – air-conditioning plant – impact – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.7

Environmental Planning and Assessment Regulation 2000

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

North Sydney Local Environmental Plan 2013

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Troy Jacob McGeachie (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Andrew Fegent and Company Solicitors (Applicant)
Hall and Willcox (Respondent)

File Number(s):

2021/89880

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) – being an appeal against the deemed refusal of an application to modify development consent - residential seeking approval of Modification Application 306/18/3 as approved on 4 March 2021 subject to the deletion of Additional Condition A4 in relation to an air-conditioning unit (the Proposed Development) at 17 Rowlison Parade Cammeray NSW legally described as Lot 21 in Deposited Plan 10001 (the Site).

2. Condition A4 provides as follows:

“Air conditioning plant

A4.   No consent is granted or may be inferred under this consent for the installation of any air conditioning plant which protrudes above the approved roof plane. The Certifying Authority must ensure the development complies with the requirements of this condition prior to the issue of any occupation certificate relating to this consent.

(Reason:   To clarify the terms of this consent and to ensure air conditioning plant does not protrude above the roof plane).”

3. The Court arranged a conciliation conference under s 34(1) and s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17, 18 June, 5, 6 and 16 July 2021. I have presided over the conciliation conference.

4. The conciliation conference commenced on site and a neighbour objector addressed the parties and the Court regarding the impact of the air-conditioning plant which was then observed from various vantage points from the neighbour’s residence.

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 and on 16 July 2021 the parties filed a s 34 Agreement with the Court. This decision involved the Court upholding the appeal and approving the application to modify the development consent 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 the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55(2) and s 4.55(3) of the EPA Act to approve the modification application to modify the development consent.

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 to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional requirements which I summarise as follows:

1. All of the matters contained in s 4.15(1), s 4.17 and s 4.55 of the EPA Act that are of potential relevance to the determination of the appeal have been taken into consideration and it is agreed between the parties that condition A4 should be deleted and the appeal upheld, subject to the imposition of an additional noise condition;

2. The Site is zoned R2 Low Density Residential under the North Sydney Local Environmental Plan 2013 (North Sydney LEP 2013). Residential development is permissible with consent in the R2 Low Density Residential zone. The air-conditioning unit is ancillary to the approved and constructed dwelling in a low density residential environment;

3. The development has been assessed by the parties against the relevant provisions of North Sydney LEP 2013. The parties agree that the development achieves the aims and objectives of the North Sydney LEP 2013, including the objectives of the R2 Low Density Residential zoning of the Site;

4. The development also complies with all relevant standards contained within North Sydney LEP 2013 and is considered acceptable with provisions relating to acid sulfate soils and earthworks;

5. The development has been assessed by the parties against the provisions of the North Sydney Development Control Plan 2013 (DCP). It achieves the objectives of the controls contained within the DCP. The development is considered by the parties acceptable with respect to the DCP;

6. The modification DA was notified and advertised from 15 January 2021 until 28 January 2021 as required by the North Sydney Community Participation Plan. Council received 4 submissions opposing the modification application;

7. The likely impacts of, and the suitability of the Site for, the development have been considered as well as all submissions made in accordance with the EPA Act and the Environmental Planning and Assessment Regulation 2000. The development is suitable for the Site, will not result in adverse environmental impacts, and is in the public interest.

8. 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 provided by the parties and in addition I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. I form this state of satisfaction after considering the following:

1. Statement prepared by George Karavanas of GSA Planning dated 14 December 2020 at page 3 setting out an assessment of the proposal being substantially the same both quantitively and qualitatively and concluding that “the works will not change the approved design ‘essentially or materially”;

2. Statement of Facts and Contentions in Reply filed at Part B (d) which documents that “Council is otherwise satisfied that the proposed modifications are substantially the same development as that originally determined by the Council”;

3. The materials now proposed to be used to cover or encase the air conditioning plant on the roof are the same materials used in the construction of the residential dwelling.

9. I am also required by s 4.55(3) of the EPA Act to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The reasons for approval are succinctly documented in the Notice of Determination of Development Consent No 306/18 dated 26 November 2018 as follows:

“The proposal is compliant with the maximum building height control in NSLEP 2013 and the minimum setback, site coverage and landscaped are controls in NSDCP 2013. The bulk and scale of the dwelling is generally compatible with nearby dwellings along the southern side of Rowlinson Parade.

The proposal is unlikely to result in any unreasonable amenity impacts for adjoining properties.”

10. 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.

11. The Court orders:

1. The Appeal is upheld.

2. Modification Application 306/18/3 to modify Development Consent DA306/18 is approved, subject to the conditions of consent set out in Annexures “A” and “B”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (182219, pdf)

Annexure B (371630, pdf)

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Decision last updated: 03 August 2021