McPeake v North Sydney Council

[2024] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:

McPeake v North Sydney Council [2024] NSWLEC 1247

Hearing dates:

Conciliation Conference 6 and 7 May 2023

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld; and

(2) Development application number DA337/22, as amended, for alterations and additions to the existing dwelling on land identified as Lot 9 in Deposited Plan 24336 and known as 2 The Boulevarde, Cammeray NSW 2062, is determined by the grant of development consent subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulations 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Sustainable Buildings) 2022

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

North Sydney Local Environment Plan 2013, cll 4.3, 4.4, 5.10, 5.23, 6.10

Category:

Principal judgment

Parties:

John James McPeake (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor)(Applicant)
S Kondilios (Respondent)

Solicitors:
Bartier Perry (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2023/421113

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the conditions imposed on a development consent D337/22 for alterations and additions to an existing dwelling, including demolition of the rear (northern) portion of the dwelling, and construction of a new addition to the rear, plus new pool and landscaping (the Proposed Development) at 2 The Boulevarde Cammeray legally described as Lot 9 in DP 24336 (the Site).

2. On September 2023, the Respondent determined D337/22 by way of a deferred commencement development consent, formalised in its notice of determination of the same date filed with the Class 1 Application on 21 November 2023. The deferred commencement development consent was granted pursuant to section 4.16(3) of the EPA Act and the Notice of Determination includes the following reasons for deferred commencement:

“The proposal was considered under the relevant Environmental Planning Instruments and policies including NSLEP 2013 and NSDCP 2013 and generally found to be satisfactory, with the exception of the swimming pool and its surrounds, and section of the lower ground and garden levels of the dwelling addition which cannot supported due to the extent of excavation works and removal of bush rock. …”

3. On 21 November 2023, the Applicant filed the Application Class 1 in the Land and Environment Court, commencing class 1 proceedings against a number of the conditions imposed by the Respondent in the Consent.

4. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6 and 7 May 2024. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement on an amendment to the DA (Amended DA) and 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. The parties agree that:

1. The Amended DA does not fundamentally alter the Proposal such that the Proposal cannot be considered an amendment to the DA, or would otherwise require the lodgement of a new DA; and

2. The Proposal remains appropriately described as alterations and additions to the existing dwelling, including demolition of the rear (northern) portion of the dwelling, and construction of a new addition to the rear, plus landscaping, but excludes the swimming pool originally proposed (Amended Proposal); and

3. The Amended DA wholly addresses the respective contentions of the parties.

7. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. 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 in the terms of various provisions in State Environmental Planning Policies and the North Sydney Local Environmental Plan 2013 (NSLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional reasons for upholding the appeal from which I have summarised below in this judgment.

10. Evidence of written consent of the registered proprietors of the Site is included in the Class 1 Application at Tab 2 filed 21 November 2023.

11. Pursuant to chapter 2 titled Vegetation in non-rural areas of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the Amended Proposal includes works to remove or protect existing trees in and adjoining the Site. The parties agree that the Amended Proposal is now satisfactory with respect to potential impacts on trees to be retained and, subject to the agreed conditions of consent, which include multiple conditions requiring protection of existing trees, the parties are satisfied that the objectives and controls of chapter 2 of the Biodiversity SEPP are suitably addressed.

12. Pursuant to chapter 6 titled Water catchments of the Biodiversity SEPP, the Site is located within the Sydney Harbour Catchment. The Site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the Biodiversity SEPP. The Site is also not located in the vicinity of a heritage item listed under the Biodiversity SEPP. The Respondent, in its assessment of D337/22, was satisfied with respect to the Biodiversity SEPP as evidenced in the Council Staff Assessment Report filed with the Respondent’s Bundle of Documents on 2 May 2024 at Tab 21 which concludes at page 36 that:

“There would be no adverse impacts relating to water quality or quantity entering the Sydney Harbour, being a regulated catchment for the purpose of Section 6.6 of the Policy.”

13. The Respondent agrees with the Applicant that the Amended DA does not alter those previous conclusions of satisfaction.

14. As a consequence of D337/22 having been lodged but not finally determined prior to 1 October 2023, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies rather than the current State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to the SEPP BASIX, the Amended DA is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by a BASIX certificate, filed with the Class 1 Application, and which is not impacted by the Amended DA and remains relevant.

15. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The parties have considered whether the Site is contaminated and, on account of the Site being historically used for residential purposes with no known history of potentially contaminating uses and events, the Respondent was satisfied in granting the Consent that the historical use of the Site for residential purposes dictates that:

1. No further investigation is warranted; and

2. The Site is deemed suitable to accommodate the Proposal.

16. The Respondent agrees with the Applicant that the Amended DA does not alter those previous conclusions of satisfaction.

17. The Proposed Development is characterised as alterations and additions to a dwelling house, and is permissible with consent in the R2 Zone, pursuant to the Land Use Table of the NSLEP.

18. Pursuant to cl 4.3(2) and the Height of Buildings Map of the NSLEP, a maximum height of buildings development standard of 8.5 metres applies to development at the Site. The Respondent was satisfied that the Proposed Development complied with cl 4.3 of the NSLEP when it granted the Consent and the parties agree that the Amended DA does not increase the overall height of the building and remains compliant.

19. The Site is not subject to a floor space ratio development standard under cl 4.4(2) and the Floor Space Ratio Map of the NSLEP.

20. Whilst not subject to any heritage listing itself, and not adjoining any property that is subject to a heritage listing, under the NSLEP the Site is located in the vicinity of a local heritage item, being the suspension bridge in the Miller Street road reserve (Heritage Item). The Respondent was satisfied that the Proposed Development did not have an unsatisfactory impact on the Heritage Item in its consideration of the terms of cl 5.10 of the NSLEP, when it granted the Consent, and the parties agree that the Amended DA does not alter those previous conclusions.

21. Pursuant to cl 5.23 of the NSLEP, the agreed conditions of consent include a condition for rehabilitation of the adjoining public bushland.

22. The Amended DA has reduced the extent of excavation required and the Respondent has considered the Amended DA in relation to matters outlined at cl 6.10(3) of the NSLEP. On this basis, the parties agree that the Amended DA is now satisfactory with respect to matters for consideration under section 6.10(3) of the LEP.

23. 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 given by the parties as set out above in this judgment.

24. 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.

Notations:

25. The Court notes that:

1. The Respondent has agreed to the Applicants amending the Application Class 1, pursuant to section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials.

Plan No.	Revision	Description	Prepared By	Date
1201	02	Site Plan and Analysis	J J McPeake	6 May 2024
2000	02	Demolition Ground Floor	J J McPeake	6 May 2024
2001	02	Demolition Lower Ground Plan	J J McPeake	6 May 2024
2003	02	Demolition Roof Plan	J J McPeake	6 May 2024
2100	02	Proposed Ground Floor Plan	J J McPeake	6 May 2024
2101	02	Proposed Lower Ground Plan	J J McPeake	6 May 2024
2102	02	Proposed Garden Level Plan	J J McPeake	6 May 2024
2103	02	Proposed Roof Plan	J J McPeake	6 May 2024
3000	02	West Elevation Demolition	J J McPeake	6 May 2024
3001	02	North Elevation Demolition	J J McPeake	6 May 2024
3002	02	East Elevation Demolition	J J McPeake	6 May 2024
3003	02	South Elevation Demolition	J J McPeake	6 May 2024
3100	02	West Elevation Proposed	J J McPeake	6 May 2024
3101	02	North Elevation Proposed	J J McPeake	6 May 2024
3102	02	East Elevation Proposed	J J McPeake	6 May 2024
3103	02	South Elevation Proposed	J J McPeake	6 May 2024
6002	02	External Finishes	J J McPeake	6 May 2024
8000	02	Landscape Plan	J J McPeake	6 May 2024
8001	02	Landscape Plan Planting Schedule	J J McPeake	6 May 2024
8002	02	Proposed Lower Garden Landscape Plan	J J McPeake	6 May 2024

2. The Applicants filed the abovementioned amended materials with the Court (and with the consent of the Respondent) on 7 May 2024

Orders:

26. The Court orders:

1. The appeal is upheld; and

2. Development application number DA337/22, as amended, for alterations and additions to the existing dwelling on land identified as Lot 9 in Deposited Plan 24336 and known as 2 The Boulevarde, Cammeray NSW 2062, is determined by the grant of development consent subject to the conditions included at Annexure A.

Commissioner of the Court

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Annexure A

Decision last updated: 15 May 2024