Mills v North Sydney Council

[2025] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mills v North Sydney Council [2025] NSWLEC 1066

Hearing dates:

Conciliation conference on 6 February 2025

Date of orders:

11 February 2025

Decision date:

11 February 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No DA 363/22 is modified in the terms in Annexure A.

(3) Development Consent No DA 363/22 as modified by the Court is Annexure B.

Catchwords:

Modification Application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, ss 34

Environmental Planning and Assessment Regulation 2021, s 113

North Sydney Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Martin Mills (First Applicant)
Joanna Bednarska (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Doyle (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Connor & Co Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/00222799

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by North Sydney Council (the Council) to modify Development Consent No DA 363/22 granted for alterations and additions to an existing semi-detached dwelling (the consent), at 17 King Street, Waverton (Lot C on DP 442915) (the site). The proposed modification of the consent includes amendments to the conditions of consent and approved design of the first storey addition, to allow for a balcony in the roof form fronting King Street.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 February 2025. I presided over the conciliation conference. 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.

3. 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) of the EPA Act to modify the development consent.

4. There are preconditions to the exercise of power to modify the development consent under s 4.55(2) of the EPA Act.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, in accordance with the documents listed below:

Plan No.	Rev.	Description	Prepared by	Dated
A010	F	Site Analysis	Bohane & Campo Architecture	12/12/2024
A050	F	Site Plan – existing (including demolition plan)	Bohane & Campo Architecture	12/12/2024
A051	F	Site Plan proposed	Bohane & Campo Architecture	12/12/2024
A101	F	Floor plan – ground floor plan	Bohane & Campo Architecture	12/12/2024
A102	F	Floor plan – Level 1 plan	Bohane & Campo Architecture	12/12/2024
A103	F	Floor plan – roof plan	Bohane & Campo Architecture	12/12/2024
A201	F	East & west elevations	Bohane & Campo Architecture	12/12/2024
A202	F	North elevations	Bohane & Campo Architecture	12/12/2024
A203	F	South elevations	Bohane & Campo Architecture	12/12/2024
A301	F	Sections	Bohane & Campo Architecture	12/12/2024
A701	F	Window schedule	Bohane & Campo Architecture	12/12/2024

Pre-conditions to modifying the consent

6. To modify the consent under s 4.55 of the EPA Act, the consent authority, or the Court exercising the functions of the consent authority, must be 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, that the application has been lawfully notified and any submissions made considered. In determining an application for modification of the consent, the consent authority must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application.

7. 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, as the changes include a small increase in the gross floor area of the first floor and the provision of a balcony on the first floor within the approved roof form. The changes proposed do not result in a radical transformation of the original consent, nor do they cause any significant adverse impact upon the streetscape or adjoining properties.

8. The site is zoned R2 Low Density Residential pursuant to North Sydney Local Environmental Plan 2013. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

9. I am satisfied that the proposed modification of the consent remains consistent with the zone objectives.

Conclusion

10. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 4 February 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

11. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No DA 363/22 for alterations and additions to an existing semi-detached dwelling at 17 King Street, Waverton, is modified in the terms in Annexure A.

3. Development Consent No DA 363/22 for alterations and additions to an existing semi-detached dwelling at 17 King Street, Waverton, as modified, is Annexure B.

Susan O’Neill

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 11 February 2025