Sloman v North Sydney Council

[2024] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sloman v North Sydney Council [2024] NSWLEC 1025

Hearing dates:

22 January 2024

Date of orders:

30 January 2024

Decision date:

30 January 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicants’ written request under cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP), prepared by Watermark Planning dated June 2023 seeking a variation of the development standard for height under cl 4.3 of the NSLEP, is upheld.

(2) The appeal is upheld.

(3) Development application DA188/2022 (as amended) for alterations and additions to an existing dwelling at 39 Union Street, McMahons Point, is approved subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – alterations and additions to dwelling house – clause 4.6 request – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Chs 2, 10

North Sydney Local Environmental Plan 2012 cll 4.3, 4.6, 6.10

State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004

Category:

Principal judgment

Parties:

Rebecca Sloman (First Applicant)
Benjamin Sloman (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
P Tomasetti (Applicants)
K Law (Solicitor) (Respondent)

Solicitors:
Ristevski and Associates (Applicants)
Matthews Folbigg (Respondent)

File Number(s):

2023/214701

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the actual refusal, by North Sydney Council of development application DA188/2022, which seeks approval for alterations and additions to an existing dwelling house at 39 Union Street, McMahons Point, known as Lot 1 in DP 948494.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 January 2024. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions.

4. Prior to this, on the 14 December 2023, leave was granted by the Court for the Applicants to rely on amended plans. The amendments to the application principally included:

1. Relocation of the accessway from Union Street at level 1 to remove the requirement for a privacy screen.

2. The inclusion of frosted glazing to the stairwell on the western elevation to minimise potential overlooking of the neighbouring property at 37 Union Street.

3. The introduction of a setback and change of material to the eastern façade at level 1, to break up the visual bulk of the façade and improve the outlook from 8 Commodore Street and 41 Union Street.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that 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, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

6. Owners’ consent has been given with the submission of the development application.

7. Both the original development application and the amended development application were appropriately notified in accordance with the Respondent’s community participation plan, during which time four submissions were received. The parties submit, and I accept, that the relevant matters raised in these submissions have been adequately taken into consideration in the preparation of amended drawings. No further submissions were received in response to the notification of the amended application, however one resident who objected to the original application made an oral submission at the commencement of these proceedings. Again, the parties submit, and I accept, that the relevant matters raised by this resident were also taken into consideration in the preparation of the amended application.

8. Pursuant to the North Sydney Local Environmental Plan 2012 (NSLEP), the subject site is zoned R3 Medium Density Residential, within which development for the purpose of a dwelling house is permitted with consent. The proposed development is consistent with the objectives of this zone.

9. NSLEP cl 4.3 sets a maximum height of building control of 8.5m to the site. The proposed development exceeds this, with a maximum height of 8.74m. This represents an exceedance of 2.82%.

10. The NSLEP cl 4.6(3) requires a written request to justify the contravention of the height of building development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the Applicants have submitted a written request prepared by Watermark Planning dated June 2023 (the written request). Pursuant to NSLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the height of building development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R3 Medium Density Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the Height of Buildings standard:

1. is minor (equating to a 2.6m² or 2.15% of the surface of the pitched roof)

2. does not result in a development that is incompatible with the surrounding built environment or streetscape, nor form any adverse amenity impacts. 

The contravention is therefore justified by the lack of impact on the amenity of neighbouring residents, the appropriate response to the constraints of the site, streetscape and surrounding residents, and by being minor in nature.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

11. No residential floor space limit applies to the subject site.

12. The subject site is located within the Union, Bank and Thomas Streets Heritage Conservation Area (HCA) and is within proximity of heritage items. The subject site itself currently contains a neutral item. Based on the parties’ submission and the evidence provided in the Heritage Assessment & Heritage Impact Statement by Gasparini Luk Architects (dated 20 June 2022) and the Joint Report of heritage experts, I accept that the proposed development will have an acceptable impact on the heritage significant of the relevant heritage items, and of the HCA and that the requirements of NSLEP cl 5.10 have been met.

13. NSLEP cl 6.10 requires consideration of the ancillary earthworks that are proposed as part of this development application. Based on the parties’ submission and the information contained in the geotechnical investigation report prepared by Green Geotechnics, dated 13 April 2022, I accept that the earthworks are minor, and that the matters set out in cl 6.10 have been adequately considered.

14. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the site has been historically used for residential purposes for over 50 years and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

15. A BASIX certificate has been filed that relates to the amended application, in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004.

16. Chapter 2 (vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development. Based on the parties’ submission I accept that the proposed development, as amended, is consistent with the provisions of Ch 2 as it does not propose to remove any significant native trees.

17. By operation of the savings provision in s 6.65 of the Biodiversity SEPP, former Ch 10 (Sydney Harbour Catchment) of this SEPP also applies to the subject site. Based on the parties’ submissions and the details provided within the Statement of Environmental Effects, I accept that the proposed development is consistent with the relevant provision of former Chapter 10 of the Biodiversity SEPP.

18. 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.

19. As the parties’ decision is one 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.

20. The Court orders:

1. The Applicants’ written request, under cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP), prepared by Watermark Planning dated June 2023 seeking a variation of the development standard for height under cl 4.3 of the NSLEP, is upheld.

2. The appeal is upheld.

3. Development application DA188/2022 (as amended) for alterations and additions to an existing dwelling at 39 Union Street, McMahons Point, is approved subject to conditions set out in Annexure A.

E Washington

Acting Commissioner of the Court

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Annexure A

Decision last updated: 30 January 2024