Caliguri v North Sydney Council

Category: Principal judgment

Parties: Gabriele Caliguri (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
P Tomasetti SC, J Y Li (Applicant)
T Poisel (Respondent)
Solicitors:
Etheringtons Solicitors (Applicant)
North Sydney Council (Respondent)

File Number(s): 2025/365481

Publication restriction: Nil

JUDGMENT

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of an application pursuant to s 4.55(2) to modify Development Application D294/20 for substantial alterations and additions to a dwelling including partial demolition of the existing dwelling, internal re-configuration, a new double garage, additions to the main dwelling, a single storey rear addition, a new swimming pool and deck, associated earthworks and landscaping works at 38 Cowdroy Avenue, Cammeray (Lot 20 DP 8933 and Lot 21A DP 370909) (the site) by North Sydney Council (the Respondent).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 197**9 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 17 February 2026.

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of modification application subject to conditions of consent subject to s 4.55(2) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of modification. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert report, expert engineering report and the documents that are referred to in Condition A1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

5. The Court notes that leave was granted to the Applicant to rely on amended plans on 29 January 2026 and these plans and documents are listed under Condition A1 of the conditions of consent at Annexure A. Changes made to the proposal to further address the contentions and matters raised in submissions include:

6. The provision of additional information on the plans to clarify areas of excavation etc, and

7. Amendment to the landscaping to provide an additional tree in lieu of the removed tree and additional plantings.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted in accordance with s 4.55(2)(a) of the EPA Act. I reach this conclusion as the amendments are relatively minor and are consistent with the quantitative and qualitative features of the original application. In particular, the proposal remains a dwelling house and, as modified, the height of the proposal does not change with only a 1.7% change in the building footprint proposed. Further, the expert town planners agree that the proposal retains the approved design intent and architectural character, building bulk and scale and that the amenity impacts are acceptable.

9. The modification application was notified by the respondent from 25 April to 9 May 2025. In response to the notification two submissions were received. The parties have advised that the matters raised in the submissions were considered in reaching agreement on the amended proposal.

10. Section 100(3)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) requires a BASIX certificate if the modification application relates to BASIX development. A revised BASIX certificate (Certificate Number A389905_02) has been prepared by Certified Energy dated 5 February 2026.

11. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

13. The Court orders that:

14. Leave is granted to the Applicant to rely on the Amended Application.

15. The appeal is upheld.

16. Development consent 294/2020 for substantial alterations and additions to a dwelling including partial demolition of the existing dwelling, internal re-configuration, a new double garage, additions to the main dwelling, a single storey rear addition, a new swimming pool and deck, associated earthworks and landscaping works at 38 Cowdroy Avenue, Cammeray (Lot 20 DP 8933 and Lot 21A DP 37909) is modified in accordance with the terms in Annexure A.

17. Development Consent No DA294/2020/6 as modified by the Court is at Annexure B.

H Miller

Acting Commissioner of the Court

Annexure A (229 KB, pdf)

Annexure B (396 KB, pdf)

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Amendments

06 March 2026

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), order 3 and para [1] is amended, correcting the address of the site from 36 Cowdroy Avenue to 38 Cowdroy Avenue.