Woodhill v North Sydney Council

Case •

[2020] NSWLEC 1034

•

23 January 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Woodhill v North Sydney Council [2020] NSWLEC 1034
Hearing dates: Conciliation conference held on 15 January 2020
Date of orders: 23 January 2020
Decision date: 23 January 2020
Jurisdiction:Class 1
Before: Morris AC
Decision:

The Court orders:
(1) The applicant is granted leave to amend the development application and rely on the amended plans and documents:
(i) The amended plans referred to in Condition 1 of Annexure “A”;
(ii) Parking Design Statement dated 4 December 2019 by PDC Consultants;
(iii) BASIX Certificate 954437M_02 dated 17 December 2019 by GAT and Associates;
(iv) Stormwater Management Plan Rev B dated 18 December 2019 by ACOR Consultants; and
(v) External Finishes Schedule by Architectural Interiors.
(2) The Appeal is upheld.
(3) Development Application DA 366/18 for the demolition of an existing detached single dwelling and the construction of a multi-storey attached dual occupancy at 5 Montpelier Street, Neutral Bay, NSW is approved subject to the conditions set out in Annexure “A”.

Catchwords: DEVELOMENT APPLICATION – dual occupancy; 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: Jamie Woodhill (Applicant)
North Sydney Council (Respondent)
Representation:

Counsel:
G McKee (Applicant)
K Law (Respondent)

  Solicitors:
McKees (Applicant)
Matthews Folbigg Lawyers (Respondent)
File Number(s): 2019/176736
Publication restriction: No

Judgment

  1. This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against North Sydney Council’s actual refusal of Development Application No D366/18 for demolition of an existing dwelling and the construction of a new dual occupancy dwelling at 5 Montpelier Street, Neutral Bay.

  2. The parties have been working together to address the reasons for refusal and the applicant filed amended plans with the Court when the application was lodged. Further amendments were made to those plans as the result of the parties preparation for hearing.

  3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 January 2020. I presided over the conciliation conference. Through the conciliation process, the parties have agreed, with the addition of conditions that address concerns of neighbours, that the amended plans address the Council’s contentions.

  4. 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 4.16 of the EPA Act.

  5. 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 land is zoned R2 low density residential and dual occupancies are permitted with consent.

  2. The proposed development does not contravene the height of buildings development standard. The maximum height is 8.137m and the permissible height is 8.5m.

  3. The proposed development does not contravene the FSR development standard given there is not an applicable FSR for the site.

  4. Clause 6.6 of North Sydney Local Environmental Plan 2013 (LEP) applies to dual occupancies and requires that the dual occupancy be attached. The dwellings are attached for 88% of the length of the common wall which complies with the 80% minimum requirement.

  5. The minimum lot size applicable for dual occupancy development is 450sqm. The property has an area of 578.5sqm.

  6. The proposed development complies with the earthworks development standards in cl 6.10 of the LEP.

  1. 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.

  2. 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.

  3. The Court orders that:

  1. The applicant is granted leave to amend the development application and rely on the amended plans and documents:

  1. The amended plans referred to in Condition 1 of Annexure “A”;

  2. Parking Design Statement dated 4 December 2019 by PDC Consultants;

  3. BASIX Certificate 954437M_02 dated 17 December 2019 by GAT and Associates;

  4. Stormwater Management Plan Rev B dated 18 December 2019 by ACOR Consultants; and

  5. External Finishes Schedule by Architectural Interiors.

  1. The Appeal is upheld.

  2. Development Application DA 366/18 for the demolition of an existing detached single dwelling and the construction of a multi-storey attached dual occupancy at 5 Montpelier Street, Neutral Bay, NSW is approved subject to the conditions set out in Annexure “A”.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (398 KB)

Plans (12.2 MB)

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Decision last updated: 23 January 2020

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