Pemberton v North Sydney Council

[2022] NSWLEC 1592

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pemberton v North Sydney Council [2022] NSWLEC 1592

Hearing dates:

Conciliation conference on 20, 21 October 2022

Date of orders:

26 October 2022

Decision date:

26 October 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

1) The clause 4.6 written request prepared by Ingham Planning dated October 2022 to vary the maximum height of buildings development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013 is upheld.

2) The appeal is upheld.

3) Development Application No DA206/21 for alterations and additions to 8 and 8A Baden Road comprising an attic addition to 8 Baden Road and new roof to the existing attic at 8 Baden Road and internal alterations to the existing dwelling at 8 Baden Road, Kurraba Point, being lots 1 and 2 in Strata Plan 83783 is approved, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 4.16, 8.7, Div 2.6

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 34AA, 39

North Sydney Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 5.10, 6.6, Sch 5 Pt 1

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity), Ch 10, Div 2

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

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

North Sydney Council’s Community Engagement Protocol dated November 2019

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

Category:

Principal judgment

Parties:

Gail Pemberton (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Cohen & Krass (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2022/166567

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by North Sydney Council of development application DA-206/21 (DA).

2. After amendments, the DA seeks consent for an attic extension and re-arrangements near the entrance to the dwelling at 8A Baden Road, Neutral Bay and the consequential amendment of the attic roof form to the abutting dwelling at 8 Baden Road, Neutral Bay (Site).

3. In regard to the amendments, I note the advice of the parties that Council has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (relevantly given the DA was lodged with the Council on 8 July 2021), to the applicant amending the DA to incorporate the plans and documents referenced below:

1. Revision G plans prepared by Anne Colville Architect, drawings A102, A103, A104, A105, A200, A201, A202, A203, A300;

2. BASIX Certificate A477923 dated 20 October 2022; and

3. Clause 4.6 Request prepared by Ingham Planning.

4. I further note that the amended DA was lodged on the NSW Planning Portal on 21 October 2022 and filed with the Court on the same day.

Conciliation

5. The Court arranged a mandatory conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), held on 20 and 21 October 2022, and at which I presided. 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 was acceptable to them. The decision agreed upon would uphold the appeal and have the Court exercise the function under s 4.16(1) of the EPA Act to grant consent to the development application in accordance with agreed conditions.

6. The parties submit 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) and provided a jurisdictional statement to that effect. I agree with this submission of the parties and address the jurisdictional tests in regard to the application as indicated below.

Jurisdiction

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity)

7. Chapter 10 Sydney Harbour Catchment applies to the proposal. I have had regard to Div 2 which lists matters for consideration and the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 and find nothing of concern there having a mind to the particulars of the proposal.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

8. Chapter 4 Remediation of land applies to the proposed development.

9. Section 4.6 provides that a consent authority must not consent to a development application unless it has considered whether the land is contaminated and whether remediation is required. There is no requirement in this instance given the existing residential use and the particulars of the proposal.

North Sydney Local Environmental Plan 2013 (NSLEP):

10. The Site falls within the R3 Medium Density Residential zone. The proposal is permissible within the zone. I have had regard to the zone objectives in accordance with the requirements of cl 2.3.

11. The proposal contravenes cl 4.3 relating to maximum building height which I give consideration to below.

12. The Site is a heritage item as identified in Sch 5, Pt 1 of the NSLEP (local item I0553). Mindful of cl 5.10(4), I have considered the effect of the proposed development on the heritage significance of the item and note Council’s heritage expert expressed satisfaction with the proposal as amended on heritage grounds.

13. Clause 6.6 relates to dual occupancies. The Site contains an existing attached dual occupancy. The clause includes requirements relating to the erection of a dual occupancy (which includes alterations pursuant to s 1.4 of the EPA Act). I agree with the parties that the requirements of cl 6.6(1)(a) are satisfied as the change to the attic roof will assist in making the building appear as a dwelling house. The entry will remain on the side of the dwelling at 8A Baden Street so that the building continues to present as a Queen Anne Federation and Arts and Crafts dwelling. The proposal does not affect cl 6.6(1)(b)-(c).

Contravention of cl 4.3

14. Clause 4.3 of NSLEP provides for a maximum building height control of 8.5m. The proposed attic has a maximum height of 11.15m. This is some 2.65m or 31% greater than the control. The applicant seeks approval notwithstanding this contravention. Clause 4.6(2) provides this capacity providing certain prerequisites are met. The applicant has opened the door to the permissive power at cl 4.6(2) through submitting a written request seeking to justify the contravention. The written request was prepared by Ingham Planning and relates to the relevant Revision G Amended plans dated October 2022.

15. Under cl 4.6(4)(a) a consent authority must form two positive opinions of satisfaction if the facilitative powers of cl 4.6(2) are to be enlivened. The first is that the applicants’ written request has adequately addressed the matters required to be addressed by cl 4.6(3). These matters are: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether compliance is unreasonable or unnecessary in the circumstances of the case

16. The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.3 are as follows:

(a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b) to promote the retention and, if appropriate, sharing of existing views,

(c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e) to ensure compatibility between development, particularly at zone boundaries,

(f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

(g) to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone E4 Environmental Living.

17. The written request successfully demonstrates that the amended proposal achieves the objectives of the development standard by showing how: (a) the existing building on the Site was placed above the street level but also cut into the hillside to follow the natural gradient and the proposed extension at the attic level generally aligns with this established response to natural landform and gradient, (b) the proposal would not impact on public views and has minimal impact on private views, (c) the proposal has a minimal effect on existing solar access on public and private lands, (d) the proposal maintains and improves privacy arrangements, (e) the design integration in relation to the proposed attic would ensure continued compatibility between development and in relation to the adjoining R3 zoned lands, (f) the bulk and scale of the proposal would be generally consistent with the prevailing built form, promoting the character of the area, and (g) built form on the site would still be perceived as two stories.

18. Strict compliance with the building height standard would be unreasonable and unnecessary because the proposal would achieve the objectives of the standard, notwithstanding the contravention.

Whether there are sufficient environmental planning grounds

19. The written request argues that the contravention of the standard brings about “a better balance to the building” (p 12). That is, having regard to the existing attic at 8 Baden Road). More generally, it is argued that the contravention is entirely consistent with the character of the area given that the majority of buildings nearby a larger and bulkier. In this instance, these are sufficient environmental planning grounds to justify contravening the height standard.

20. On the above basis, I am satisfied that the applicants’ written request has adequately addressed the matters required to be addressed by cl 4.6(3): (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether in the public interest

21. The second positive opinion of satisfaction relating to the enlivening of the facilitative powers of cl 4.6(2) is that the proposed development will be in the public interest because the development is consistent with the objectives of the contravened development standard and the relevant zone. This finding of satisfaction is a direct one for the consent authority, or in this case the Court.

22. I adopt the reasoning contained in the written request to find that the development is consistent with the objectives of the contravened development standard (ie cl 4.3).

23. The zone objectives are as follows:

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

• To provide a variety of housing types within a medium density residential environment.

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

• To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To provide for a suitable visual transition between high density residential areas and lower density residential areas.

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

24. The proposal is consistent with the first and second zone objectives because the proposal provides for the housing needs of the community and a variety of housing types within this medium density residential setting by adding, albeit in a small way, to spatial availability and variety. The third zone objective is not relevant. The proposal is consistent with the fourth zone objective because the amended proposal has addressed concerns in regard to accommodating the amenity of the surrounding area, and natural and cultural heritage of the area. The proposal is also consistent with the fifth and sixth objectives because the proposal design provides for a suitable visual transition between zones and ensures that a high level of residential amenity is achieved and maintained.

25. With the above findings, the proposed development will be in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the zone in which the development is proposed to be carried out.

Conclusion in regard to development standard contravention

26. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5). I have considered these matters and find nothing of significance arises.

27. In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) is enlivened have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the building height standard at cl 4.3.

Other considerations under s 4.15(1) of the EPA Act

28. Under s 4.15(1)(d) of the EPA Act, I must take into consideration lay submissions. Council’s bundle of documents included submissions received following notification, which I have had regard to. The Court also had the opportunity to hear oral evidence from two objectors during the site inspection. I note that the amended DA has not been notified, however the impacts of the proposal are less than those notified as they remove the northern dormer and reduce the scale of the attic level to address concerns relating to privacy and to view loss. The parties agree that it is reasonable to impose a condition requiring obscure glazing to the dormer window to the west.

29. I accept the advice of the parties that North Sydney Council’s Community Engagement Protocol dated November 2019 (Protocol) was prepared under Div 2.6 of the EPA Act and applies to the Site. Part 3.6 of the Protocol provides a discretion not to re-notify amendments made to development applications prior to determination ‘where the amendments, the Council’s opinion, do not increase or lessen the adverse effect on adjoining or neighbouring land’. The parties agree that in this instance the amendments (removal of the northern dormer, the reduction in scale of the attic and its added cohesive roof form with 8A Baden Road) will lessen any adverse effect on adjoining and neighbouring lands, and that the amendments are made in response to the concerns raised by the objectors. The requirements of s 4.15(1)(d) of the EPA Act are satisfied.

30. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

31. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment beyond the commentary in this judgement. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

33. The Court orders that:

1. The clause 4.6 written request prepared by Ingham Planning dated October 2022 to vary the maximum height of buildings development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013 is upheld.

2. The appeal is upheld.

3. Development Application No DA206/21 for alterations and additions to 8 and 8A Baden Road comprising an attic addition to 8 Baden Road and new roof to the existing attic at 8 Baden Road and internal alterations to the existing dwelling at 8 Baden Road, Kurraba Point, being lots 1 and 2 in Strata Plan 83783 is approved, subject to the conditions of consent in Annexure A.

……………………………

P Walsh

Commissioner of the Court

**********

Annexure A

Decision last updated: 26 October 2022