Nicklin v North Sydney Council

[2019] NSWLEC 1428

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nicklin v North Sydney Council [2019] NSWLEC 1428
Hearing dates:	Conciliation conference on 9 September 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is given leave to amend the development application and rely on the plans referred to in condition A1 in Annexure ‘A’. (2) The applicant is to pay the respondents costs of assessment of the amended development application in the sum of $310 within 28 days. (3) The appeal is upheld. (4) Development application DA 162/18 seeking consent for the demolition of a carport and erection of a double carport in respect of the property known as No. 8 Queens Avenue, McMahons Point is approved subject to the conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – new double carport – amended design – heritage conservation area – conciliation conference – agreement between the 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:	Marion Nicklin (Applicant) North Sydney City Council (Respondent)
Representation:	Counsel: A Gough (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent)   Solicitors: Storey & Gough (Applicant) Hall Wilcox Lawyers (Respondent)
File Number(s):	2019/ 26941
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application DA/162/18. The original development application sought consent for demolition of the existing carport and erection of a double carport at 8 Queens Avenue, McMahons Point.

2. On 31 May 2018, the Applicant lodged a development application with North Sydney Council. Following notification and assessment of the application it was refused. The principal reason for refusal was the impact of the proposed development on the significance of the McMahons Point North Heritage Conservation Area. Through the conciliation process the parties have agreed an amended design for the carport and the associated structures. The key change is the removal of a pitched roof and its replacement with a flat roof structure which is less visually dominating.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 9 September 2019.

5. Following the conciliation, 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 them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. the development is for the purpose of a dwelling which is a permissible use in the R3- Medium Density Residential zone pursuant to cl 2.3(2) of North Sydney Local Environmental Plan 2013 (LEP 2013);

2. I have given consideration to the objectives of the zone cl 2.3(2) of LEP 2013;

3. the development is below the maximum height standard at cl 4.3(2) of LEP 2013.

4. I am satisfied that the amended design, being a light-weight structure in the front setback will not have a detrimental impact on the of the heritage significance of the McMahons Point Heritage Conservation Area: cl 5.10(4) LEP 2013.

7. 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is given leave to amend the development application and rely on the plans referred to in condition A1 in Annexure ‘A’.

2. The applicant is to pay the respondents costs of assessment of the amended development application in the sum of $310 within 28 days.

3. The appeal is upheld.

4. Development application DA 162/18 seeking consent for the demolition of a carport and erection of a double carport in respect of the property known as No. 8 Queens Avenue, McMahons Point is approved subject to the conditions in Annexure ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (492 KB)

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Decision last updated: 13 September 2019