Warrand v North Sydney Council

[2023] NSWLEC 1633

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warrand v North Sydney Council [2023] NSWLEC 1633

Hearing dates:

Conciliation Conference 8 September 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to Development Application No DA 297/22, as amended, for partial demolition, alterations and additions to existing dwelling, and associated works at 14 Armstrong St, Cammeray, NSW, being Lot 1 in DP 598199, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – dwelling house – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 27, 38

North Sydney Local Environmental Plan 2013, cl 2.3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.3

Category:

Principal judgment

Parties:

Edward Jonathan Warrand (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2023/112096

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the North Sydney Council (the Council) of DA 297/22 (the Development Application) for alterations and additions to a dwelling house at 14 Armstrong St, Cammeray, being Lot 1 DP 598199 (the Site).

2. 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 site. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The Council accepted that the amendment was minor and did not trigger an order for costs. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to partial demolition, alterations and additions to the existing dwelling house.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement filed on 11 September 2023. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

6. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

North Sydney Local Environmental Plan 2013

7. The land to which the development application relates is situated within the R3 Medium Density Residential zone under the North Sydney Local Environmental Plan 2013 (NSLEP 2013).

8. Development for the purposes of a dwelling house is permissible with consent in accordance with the Land Use Table for the R3 Medium Density Residential zone.

9. The objectives of the R3 Zone are:

•  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.

10. Clause 2.3(3) of NSLEP 2013 requires the Court to have regard to the R3 zone objectives when determining the DA. The parties agree that the development achieves the objectives of the R3 zone.

Other development standards

11. The land is subject to a height of buildings development standard of 8.5m with which the DA complies. The DA does not contravene any other development standard in NSLEP 2013 nor any other applicable environmental planning instrument.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires consideration of the contamination status of the land. The proposed works do not include any change to the use of the land that has a long history of residential use.

BASIX Certificate

13. An updated BASIX Certificate, No A487579_02 prepared by Chapman Environmental Services Pty Ltd, has been provided by the Applicant dated 5 September 2023 to satisfy the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021.

Section 4.15(1) Environmental Planning and Assessment Act 1979 Act

14. The parties agree that the DA as amended can be approved taking into consideration the matters in ss 4.15(1)(a)(iii), 4.15(1)(b) – (e) of the EPA Act.

15. The parties agree that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act. The DA was notified in accordance with the North Sydney Community Engagement Protocol from 21 October to 4 November 2022. The parties agree that the submissions of residents have been taken into consideration.

16. In considering the DA as amended and, in deciding whether to enter into a s 34 Agreement which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) EPA Act and s 39(4) of the LEC Act.

Conditions of consent

17. The parties have agreed on conditions of consent. The parties agree that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Conclusion:

18. For these reasons and based on the evidence before me and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

19. 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. 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.

Notations:

20. The Court notes:

1. The Respondent has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA 297/22 to rely upon the following amended plans and documents (Amended Development Application):

1. Amended Architectural Drawings prepared by Superdraft (revision 14 dated 12 August 2023);

2. Tree Protection Plan including Impact Assessment prepared by Urban Forestry Australia dated August 2023;

3. Landscape Concept Plan prepared by Catriona MacKenzie (LPDA-01) dated 4 August 2023;

4. BASIX Certificate A487579_02 prepared by Chapman Environmental Services Pty Ltd dated 5 September 2023; and

5. Survey Plan prepared by Peak Surveying Services (22-1833) dated July 2023.

Orders:

21. The Court orders that:

1. The appeal is upheld.

2. Development Application DA297/22 lodged on 18 September 2022, as amended, for partial demolition, alterations and additions to the existing dwelling, and associated works at 14 Armstrong Street Cammeray being Lot 1 in DP 598199 is approved subject to the conditions at Annexure A.

L Byrne

Acting Commissioner of the Court

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Annexure A

Decision last updated: 31 October 2023