Morris v North Sydney Council

[2023] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morris v North Sydney Council [2023] NSWLEC 1354

Hearing dates:

Conciliation conference on 4 May 2023

Date of orders:

07 July 2023

Decision date:

07 July 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application 198/22 in respect of 8 Levick Street, Cremorne for the construction of a new driveway with crossover and a single carport within the south-eastern corner of the front setback, including a storage area beneath the carport, alterations to the existing dwelling, other external works and associated works is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(3) The amended plans are to be uploaded to the NSW Planning Portal by 5pm on 2 May 2023.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling house – s34AA conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 37

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

North Sydney Local Environmental Plan 2013, Pt 4

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

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Katherine Morris (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
E Strecker (Agent)(Applicant)
K Law (Solicitor)(Respondent)

Solicitors:
Matthews Folbigg Pty Limited (Respondent)

File Number(s):

2022/382408

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by North Sydney Council (Council) of Development Application number DA 198/22 (DA) for alterations and additions to an existing dwelling house on land described as Lot 11 DP 102964 at 8 Levick Street Cremorne (the Site).

2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act1979 (LEC Act), at which I presided, on 4 May 2023, which commenced in Court.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties 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 (as amended) subject to conditions.

4. The signed agreement was filed on 2 May 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. An amended agreement was subsequently filed on 26 June 2023.

5. 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 (as amended) that was prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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 one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

1. Landowner’s consent has been provided in the Class 1 Application.

2. The Development Application was publicly notified as was required. The parties agree and I accept that the amended plans have addressed the issues raised by the objector at No. 6 Levick Street.

3. The parties agree and I accept that North Sydney Local Environmental Plan 2013 (NSLEP 2013) is the relevant local environmental planning instrument that applies to the Site and the Site is located within zone R2 Low Density Residential, which permits alterations and additions to dwelling houses with Council’s development consent.

4. The parties submit and, based on this and the information in the Statement of Environmental Effects (SEE), that the proposed development is consistent with the objectives of this zone by providing for low density residential development in the R2 Zone.

5. The parties agree and I accept that the proposal complies with all of the relevant development standards in Pt 4 of the NSLEP. Clause 4.3 relates to the Height of Buildings development standard and applies land zoned R2 Low Density Residential. The maximum Height of Buildings development standard for R2 Low Density Residential is 8.5 metres. The height of the proposed carport is 3.0 metres and therefore will not exceed the maximum height of 8.5 metres and I am satisfied the proposal satisfies the requirements of Clause 4.3. Clause 5.10 requires the consent authority to consider the effect of the proposed development on the heritage significance of a heritage item or heritage conservation area concerned. The parties agree that the Site is not located within a heritage conservation area and the Site is not a heritage item and therefore I am satisfied that cl 5.10 is not relevant to the proposal.

6. The parties submit and I accept that the proposal, as amended, is generally consistent with the relevant provisions in the North Sydney Development Control Plan 2013 (DCP). The width of the driveway has been reduced from 3.5m to 2.5m to comply with the DCP and the height of the carport has been reduced from 3.9m to 3m, so that it is no higher than the front gable of the existing dwelling. The reduction in the height of the proposed carport will also result in increased solar access to No. 6 Levick St. The parties submit and I accept that the proposed carport does not impact on the solar access of the main internal living area of No. 6 Levick Street.

7. Section 1.4.3 of the DCP states that existing street trees are to be retained and protected by avoiding excavation or building within the drip line of the tree. The Amended Proposal shows that the proposed driveway has been reduced from 3.5 metres to 2.5 metres in width in order to retain and protect the Callistemon viminalis (Weeping Bottlebrush) located on the Council verge in front of 8 Levick Street. An addendum to the original Tree Assessment and Management Report dated November 2022 was produced by Senior Consulting Arborist Kyle Hill (AQF Level 5 and 8) on 17 March 2023. The addendum confirms that the proposed driveway location is outside the notional structure of the tree and provides appropriate recommendations for tree management during construction.

8. The parties agree that the proposed site cover of 44% is acceptable as the proposed balcony projection (on the side of No. 6 Levick Street) has been reduced from 3m to 2m and landscaped area has been increased to 47%. The parties also agree and I accept that the location of the carport in the front setback is acceptable in the circumstances.

9. Having regard to the Applicant’s explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council and those raised by the objector to the proposal. Accordingly, I am satisfied that the proposal is in the public interest.

10. In relation to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Respondent has considered whether the Site is contaminated. The parties submit that due to the historical use of the Site for residential purposes contamination is unlikely and I am satisfied that the parties have considered whether the Site is contaminated and concluded no further assessment is required. I accept this conclusion.

8. For these reasons 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.

9. 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.

10. The Court notes that:

1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. The Applicant has amended Development Application No. 198/22 with the agreement of North Sydney Council, as the relevant consent authority to rely on the following amended plans and documents:

1. Landscape plan DA02 (Rev D) prepared by Domus Designs and dated 14 March 2023.

2. Proposed alterations and additions plan DA04 (Rev D) prepared by Domus Designs and dated 14 March 2023.

3. Proposed alterations and additions plan DA05 (Rev C) prepared by Domus Designs and dated 14 March 2023.

4. Proposed driveway sections DA06 (Rev C) prepared by Domus Designs and dated 14 March 2023.

5. Site coverage DA07 (Rev C) prepared by Domus Designs and dated 15 March 2023.

6. Addendum to: Tree Assessment & Management Report for Lodged Development Application prepared by Kyle Kill and dated 17 March 2023

11. The Court Orders:

1. The appeal is upheld.

2. Development Application 198/22 in respect of 8 Levick Street, Cremorne for the construction of a new driveway with crossover and a single carport within the south-eastern corner of the front setback, including a storage area beneath the carport, alterations to the existing dwelling, other external works and associated works is determined by the grant of consent, subject to the conditions of consent at Annexure A.

3. The amended plans are to be uploaded to the NSW Planning Portal by 5pm on 2 May 2023.

L Sheridan

Acting Commissioner of the Court

Annexure A

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Decision last updated: 07 July 2023