Miyakawa v North Sydney Council

[2019] NSWLEC 1414

Land and Environment Court

New South Wales

Medium Neutral Citation:	Miyakawa v North Sydney Council [2019] NSWLEC 1414
Hearing dates:	Conciliation conference on 16 August 2019; 30 August 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) The applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition A1 in Annexure A. (2) The appeal is upheld. (3) The written request to vary the height standard set out in clause 4.6 variation – building height prepared by DMPS dated 21 August 2019 pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013 is upheld. (4) Development application D284/18 seeking alterations and additions to an existing heritage listed dwelling is approved subject to the conditions in Annexure A
Catchwords:	DEVELOPMENT APPEAL – heritage item – heritage conservation area – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Helen Caroline Miyakawa (Applicant) North Sydney Council (Respondent)
Representation:	Solicitors: Conomos Legal (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2019/138941
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the North Sydney Council (the Respondent) of Development Application No. 284/18 (the DA) which seeks consent for substantial alterations and additions to a heritage listed terrace including new roof deck on the service wing and an elevated deck above the rear yard at 43 Pitt street, Kirribilli.

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 was held on 16 August 2019 at which in-principle agreement was reached, subject to amended plans being prepared that were responsive to submissions from resident objections and contentions raised by the Respondent. I presided over the conciliation conference. The conciliation conference was reconvened on 30 August 2019 at which the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 August 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement.

5. 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. There are jurisdictional prerequisites contained in the provisions of the North Sydney Local Environmental Plan 2011 (NSLEP), including a written request seeking the justify a contravention of the development standard found at cl 4.3 of the NSLEP.

6. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [11].

7. In particular, I have considered the written request prepared by Mr Daniel McNamara dated 21 August 2019 and I have formed an opinion of satisfaction that the request adequately addresses in cl 4.6 of the NSLEP for the following reasons:

1. The site is subject to a maximum building height of 8.5m, while the existing building is 13.24m. The ridgeline, dormer windows and south facing skillion roof of the existing dwelling exceeds the development standard by a maximum of 4.74m. The proposed works do not increase the height of the building, but comprise bifold doors and a balustrade contained within the existing envelope.

2. I am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances as the works do not result in any loss of solar access, views, landscaped area, or in any uncharacteristic element in the Pitt Street location or the wider Jeffrey Street heritage conservation area. Furthermore, the works do not contribute additional bulk to the existing built form and are not readily visible from any vantage point in the public domain.

3. I am satisfied that there are sufficient environmental planning grounds to justify the contravening of the development standard as the proposed works result from internal modifications to a staircase so as to improve occupant amenity within the existing building envelope and without imposing adverse amenity impacts on adjoining properties.

4. In my view, the written request demonstrates that the contravention of the standard results in an outcome that is consistent with the objectives of the development standard, and with the objectives of the R3 Medium Density Residential zone applicable the site.

8. I have considered the effect of the proposed works on the heritage item and the Jeffrey Street heritage conservation area, pursuant to cl 5.10 of the NSLEP and I am satisfied that no adverse impacts result from the grant of consent.

9. 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.

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. 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.

12. The Court orders that:

1. The applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition A1 in Annexure A.

2. The appeal is upheld.

3. The written request to vary the height standard set out in clause 4.6 variation – building height prepared by DMPS dated 21 August 2019 pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013 is upheld.

4. Development application D284/18 seeking alterations and additions to an existing heritage listed dwelling is approved subject to the conditions in Annexure A.

……………………..

T Horton

Commissioner of the Court

Annexure A (259 KB)

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Decision last updated: 06 September 2019