McPhee v Council of the City of Sydney

[2025] NSWLEC 1263

Land and Environment Court

New South Wales

Medium Neutral Citation:

McPhee v Council of the City of Sydney [2025] NSWLEC 1263

Hearing dates:

Conciliation Conference on 11 April 2025

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development Application D/2024/99 for alterations and additions to existing attached dual occupancy development and use of the building as a single dwelling development at 30-32 Victoria Street, Potts Point NSW 2011, being SP16336 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to existing dual attached occupancy – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.12, 6.13, 6.14, Ch 6, Pt 6.2 Div 2

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Sydney Local Environmental Plan 2012, cll 4.3, 5.10, 5.21, 6.21C, 7.14, Sch 5

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

John McPhee (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Gough (Solicitor)(Applicant)
A Singh (Solicitor)(Respondent)

Solicitors:
Storey and Gough (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/238680

Publication restriction:

Nil

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 refusal of Development Application D/2024/99 seeking consent for the alterations and additions to an existing attached dual occupancy, including a third storey addition and roof terrace, substantial demolition, associated landscape works, and a change of use from dual occupancy to a single dwelling (Proposed Development) at 30-32 Victoria Street, Potts Point legally described as Lot 1 and 2 in SP16336 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 11 April 2025. I have presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. On 27 November 2024, the parties participated in a conciliation conference before Acting Commissioner Macken commencing at the Site. Several submitters spoke in objection to the Development Application, and the parties and Commissioner inspected two of the apartments in the 1 St Neot Avenue, Potts Point development which were said to have had views impacted by the proposal. That conciliation conference was terminated on 12 February 2025.

5. Following the provision of amended plans, additional information, and agreed conditions of consent, all contentions raised in Council’s Statement of Facts and Contentions filed in the proceedings on 1 August 2024 (SOFAC) have been resolved. Compared to the original Development Application, the amendments to the design of the proposal can be summarised as follows:

1. Deletion of the roof terrace;

2. Increased setbacks from the western (front) boundary and eastern (rear) boundary at the first and second floors, and associated internal reconfiguration to accommodate the increased setbacks / reduced floor plans;

3. Deletion of the wraparound balcony to the east (rear) at the second floor level, and replacement with a non-trafficable roof planter;

4. Deletion of the walkway and skylight at the second floor level;

5. Deletion of the skylight at the first floor level so that the area adjacent to the walkway is open to the sky;

6. Inclusion of a 1.8m privacy screen along the southern edge of the proposed external walkway on the first floor;

7. Deletion of the balcony off Bedroom 2 on the first floor;

8. Deletion of the garage doors off Grantham Lane, and revised orientation of the garage so that two vehicles are accommodated via a single entry over the northern boundary;

9. Existing front door entry at ground level and existing ground floor finished floor to be retained;

10. Revised side access to Grantham Lane from boundary provided.

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. 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.

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

8. 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 various provisions of the Sydney Local Environmental Plan 2012 (SLEP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

9. Owner’s consent has been obtained for the making of the Development Application from each of the owners of the land to which the Development Application relates as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021.

10. The amended Development Application no longer proposes a roof terrace and now proposes a maximum height of building (HOB) of 10.5m which is fully compliant with the 12m maximum HOB development standard pursuant to cl 4.3 of the SLEP.

11. I agree with the parties that the amended Development Application exhibits design excellence as required pursuant to cl 6.21C of the SLEP. The amended plans propose a reduced building envelope with increased building setbacks in keeping with the context of the streetscape and provide a more sympathetic scheme in response to surrounding heritage items and the heritage conservation area. The amended plans have resolved heritage, bulk and scale, view sharing and visual privacy issues, whilst additional analysis has been submitted which demonstrates that the Proposed Development will not cause unreasonable environmental impacts with regards to overshadowing.

12. The subject building is identified as a neutral building on the Building contributions map in the Sydney Development Control Plan 2012, within the Potts Point Heritage Conservation Area (Map reference C51) as per the Heritage Map and Sch 5 of the SLEP. Pursuant to cl 5.10 of the SLEP the parties explain that the following changes to the design have lessened the heritage impacts of the proposal:

1. The extent and height of glazing on the second floor addition has been reduced;

2. A front setback for the upper floor addition is now provided. This has been designed to ensure that there is visibility of the existing chimneys (to be retained) from the west of the site;

3. A side setback from the adjacent property at 34 Victoria Street is now provided through deletion of the skylight and setting the second storey addition back from the boundary;

4. The extent of demolition has been reduced and the existing ground slabs are now proposed to be retained;

5. The design no longer infills the adjacent lightwell to 34 Victoria Street as the skylight has been deleted to ensure this area is open to the sky.

13. While the front verandah and balcony design remain as originally proposed, the heritage impacts of the amended Development Application are now acceptable on balance, taking into consideration the neutral status of the building and those design amendments above.

14. The parties agree that the amended Development Application results in a sympathetic development that will not have a detrimental impact on the heritage significance of the conservation area and surrounding heritage items.

15. The Site is flood-affected along all three frontages. Council’s Public Domain Officer has reviewed the Flood Risk Assessment Report prepared by Partridge Hydraulic Services and dated 14 February 2025, Rev 6, and considers it acceptable. I have read the Flood Risk Assessment Report, and I am satisfied that the Proposed Development meets the requirements for development within the flood planning area in cl 5.21(2)(a)-(e) of the SLEP.

16. In relation to the s 6.8(1) considerations regarding flooding in the State Environment Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), the parties’ position is that the development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems. Accordingly, I am satisfied that the development will not result in a release of pollutants in the event of a flood and will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

17. The Site is located on land with Class 5 Acid Sulfate Soils. Clause 7.14(3) of the SLEP states that development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. The application does not propose works requiring the preparation of an Acid Sulfate Soils Management Plan, being works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table is likely to be lowered below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

18. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 states that development consent must not be granted to development to which the standards specified in Sch 1 or 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified.

19. A BASIX Certificate has been submitted with the development application (A1731711_02) and the Applicant has provided a further draft BASIX Report “Version: 4.03/EUCALYPTUS_03_01_0” together with a letter from Martin Pinson of GreenPerch dated 16 April 2025 and I am satisfied that the Applicant has quantified the embodied emissions attributable to the Proposed Development.

20. Given the history of residential use of the land, the Site is not considered to be subject to contamination and further investigation is not required: s 4.6, State Environmental Planning Policy (Resilience and Hazards) 2021.

21. The Site is within the Sydney Harbour Catchment and eventually drains into Sydney Harbour. However, the Site is not located in the Foreshores Waterways Area or adjacent to a waterway and therefore, with the exception of the control of improved water quality and quantity, the controls set out in Pt 6.2 Div 2 of the Biodiversity and Conservation SEPP are not applicable to the Proposed Development.

22. The Site is located within the designated hydrological catchment of Sydney Harbour and is subject to the provisions of Ch 6 of the Biodiversity and Conservation SEPP. The Applicant relies on a Stormwater Management Plan which provides for the capture and conveyance of stormwater from the Site into Council’s stormwater system, and the agreed conditions require the owner of the Site to enter into a Deed of Agreement and to register a Positive Covenant for all proposed connections to Sydney City's underground drainage system. The conditions also include erosion and sediment controls.

23. In relation to s 6.6(1)(a)-(g) considerations regarding water quality and quantity in the Biodiversity and Conservation SEPP, the parties’ position is as follows:

1. subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway;

2. the development will not have an adverse impact on water flow in a natural waterbody;

3. there will be no discernible increase to stormwater runoff that would adversely affect downstream land;

4. the development does not incorporate on-site stormwater retention, infiltration or reuse;

5. the development will have no impact on the level and quality of the water table;

6. cumulative environmental impacts from the development on the regulated catchment are negligible; and

7. the development makes adequate provision to protect the quality and quantity of groundwater.

24. Accordingly, as required by s 6.6(2) of the Biodiversity and Conservation SEPP, I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral and that the development has negligible and satisfactory water flow impacts for a natural waterbody.

25. In relation to s 6.7(1)(a)-(f) considerations regarding aquatic ecology in the Biodiversity and Conservation SEPP, the parties’ position is as follows:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application;

2. the development does not involve the clearing of riparian vegetation;

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway;

4. the development will not have an adverse impact on wetlands;

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and

6. the development does not adjoin a natural waterbody.

26. Accordingly, as required by s 6.7(2)(a)-(e) of the Biodiversity and Conservation SEPP, I am satisfied that:

1. any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development;

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. no approval or permit is required under the Water Management Act 2000 or the Fisheries Management Act 1994;

4. the land does not abut a natural waterbody; and

5. there will be no adverse impact on wetlands.

27. In relation to the s 6.9(1) considerations regarding recreation and public access in the Biodiversity and Conservation SEPP, the parties’ position is that the development will have no impact on recreational land uses in the Sydney Harbour catchment and that the development has no impact on public access to and around foreshores. Accordingly, as required by s 6.9(2)(a)-(c) of the Biodiversity and Conservation SEPP, I am satisfied that:

1. the development has no impact on public access to and from natural waterbodies for recreational purposes;

2. the development does not involve new or existing points of public access to natural waterbodies; and

3. the land does not form part of a foreshore of a natural waterbody.

28. The site is not within a Riverine Scenic Area (s 6.12, Biodiversity and Conservation SEPP) or a Hawkesbury-Nepean conservation area sub-catchment (s 6.13, Biodiversity and Conservation SEPP) and does not involve temporary use of land (s 6.14, Biodiversity and Conservation SEPP).

29. 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 I have set out in this judgment.

30. 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

31. The Court notes:

1. The Council of the City of Sydney, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application D/2024/99 in accordance with the documents listed below (the Amended Development Application):

1. Architectural Plans prepared by Ursino Architects, as follows:

Drawing Number	Drawing Name	Date
Cover Page	10.02.2025
A100 (Revision A)	BASIX requirements	10.02.2025
A201 (Revision B)	Site Analysis	10.02.2025
A202 (Revision B)	Site Plan	10.02.2025
A301 (Revision B)	Ground Floor Plan-Existing	10.02.2025
A302 (Revision B)	First Floor Plan-Existing	10.02.2025
A303 (Revision B)	Roof Plan -Existing	10.02.2025
A304 (Revision B)	Ground Floor Plan – Demolition	10.02.2025
A305 (Revision B)	First Floor Plan – Demolition	10.02.2025
A306 (Revision B)	Roof Plan – Demolition	10.02.2025
A307 (Revision B)	Ground Floor Plan – Proposed	10.02.2025
A308 (Revision B)	First Floor Plan – Proposed	10.02.2025
A309 (Revision B)	Second Floor Plan – Proposed	10.02.2025
A311 (Revision B)	Roof Plan – Proposed	10.02.2025
A312 (Revision A)	Courtyard Landscape – GF Plan	10.02.2025
A313 (Revision A)	Site Plan – Street Setback 01	10.02.2025
A314 (Revision A)	Site Plan – Street Setback 02	10.02.2025
A401 (Revision B)	Section AA	10.02.2025
A402 (Revision B)	Section BB	10.02.2025
A501 (Revision B)	West Elevation	10.02.2025
A502 (Revision B)	North Elevation	10.02.2025
A503 (Revision B)	East Elevation	10.02.2025
A504 (Revision B)	South Elevation	10.02.2025
A505 (Revision B)	Streetscape Elevation – Victoria Street	10.02.2025
A506 (Revision B)	Streetscape Elevation – Grantham Lane	10.02.2025
A601 (Revision B)	Calculations	10.02.2025
A602 (Revision B)	Shadow Diagram-21 June-9am	10.02.2025
A603 (Revision B)	Shadow Diagram-21 June-12 noon	10.02.2025
A604 (Revision B)	Shadow Diagram-21 June-3pm	10.02.2025
A701 (Revision B)	View from Sun-Winter-9am	10.02.2025
A702 (Revision B)	View from Sun-Winter-9:30am	10.02.2025
A703 (Revision B)	View from Sun-Winter-10am	10.02.2025
A704 (Revision B)	View from Sun-Winter-10:30am	10.02.2025
A705 (Revision B)	View from Sun-Winter-11am	10.02.2025
A706 (Revision B)	View from Sun-Winter-11:30am	10.02.2025
A707 (Revision B)	View from Sun-Winter-12pm	10.02.2025
A708 (Revision B)	View from Sun-Winter-12:30pm	10.02.2025
A709 (Revision B)	View from Sun-Winter-1pm	10.02.2025
A710 (Revision B)	View from Sun-Winter-1:30pm	10.02.2025
A711 (Revision B)	View from Sun-Winter-2pm	10.02.2025
A712 (Revision B)	View from Sun-Winter-2:30pm	10.02.2025
A713 (Revision B)	View from Sun-Winter-3pm	10.02.2025
A714 (Revision B)	View from Sun-Equinox-9am	10.02.2025
A715 (Revision B)	View from Sun- Equinox -9:30am	10.02.2025
A716 (Revision B)	View from Sun- Equinox -10am	10.02.2025
A717 (Revision B)	View from Sun- Equinox -10:30am	10.02.2025
A718 (Revision B)	View from Sun- Equinox -11am	10.02.2025
A719 (Revision B)	View from Sun- Equinox -11:30am	10.02.2025
A720 (Revision B)	View from Sun- Equinox -12pm	10.02.2025
A721 (Revision B)	View from Sun- Equinox -12:30pm	10.02.2025
A722 (Revision B)	View from Sun- Equinox -1pm	10.02.2025
A723 (Revision B)	View from Sun- Equinox -1:30pm	10.02.2025
A724 (Revision B)	View from Sun- Equinox -2pm	10.02.2025
A725 (Revision B)	View from Sun- Equinox -2:30pm	10.02.2025
A726 (Revision B)	View from Sun- Equinox -3pm	10.02.2025
A801 (Revision B)	Perspectives	10.02.2025
A802 (Revision B)	Perspectives 02	10.02.2025
A901 (Revision B)	Materials & Window Schedules	10.02.2025
A902 (Revision A)	Flood Emergency & Lift Ramp Details	10.02.2025

2. Flood Risk Assessment Report prepared by Patridge Hydraulic Services and dated 14 February 2025 (Rev 6).

3. BASIX Certificate A1731711_02 dated 24 March 2025 by Greenperch Pty Ltd.

4. BASIX Report “Version: 4.03/EUCALYPTUS_03_01_0” together with a letter from Martin Pinson of GreenPerch dated 16 April 2025.

2. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to s 37(7) of the Environmental Planning and Assessment Regulation 2021.

Orders

32. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development Application D/2024/99 for alterations and additions to existing attached dual occupancy development and use of the building as a single dwelling development at 30-32 Victoria Street, Potts Point NSW 2011, being SP16336 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

E Espinosa

Commissioner of the Court

Annexure A (335420, pdf)

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Decision last updated: 29 April 2025