Charles Peters trading as Craft Architecture Sydney v North Sydney Council [2025] NSWLEC 1636

Category: Principal judgment

Parties: Charles Peters trading as Craft Architecture Sydney (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
A Galasso SC (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/21004

Publication restriction: Nil

JUDGMENT

Introduction

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 deemed refusal of Development Application 175/24, as amended, for the demolition of a dwelling house, removal of one tree and the construction of a dwelling house and associated works at 35 East Crescent Street, Lavender Bay (Lot 3 DP 323406) (the site) by North Sydney Council (the Respondent).

2. The Court was required to arrange 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 26, 27 and 28 August 2025.

Outcome

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 development consent subject to conditions of consent pursuant to s 4.16(1) 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 development consent. 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 reports 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 s 4.15(1) of the EPA Act.

5. The Court notes that leave was granted to rely on amended plans on 19 August 2025. Further, the Respondent, as the consent authority, consented to the further amendment of the application during the conciliation conference pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the final amended application were submitted to the Court on 28 August 2025 and are listed under Condition A1 of the conditions of consent at Annexure A. Changes made to the proposal during the conciliation to further address the contentions and matters raised in submissions include:

6. A 3 metres (m) setback from the eastern boundary for the north-eastern part of the ground floor and Level 1 of the building;

7. A 4.2m setback from the eastern boundary for the north-eastern part of Level 2 and inclusion of a glass balustrade;

8. A 200mm setback from the southern boundary of the ground floor, Level 1 and Level 2; and

9. A 1.81m setback for the ground floor, Level 1 and Level 2 from the western boundary.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. The site is identified as being within the ‘Coastal Environment Area’ and ‘Coastal Use Area’ under State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and accordingly ss 2.12 and 2.13 apply. The Court notes that ss 2.10 and 2.11 of the RH SEPP do not apply as the site is also within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 20 21 (BC SEPP).

8. As required as a precondition of the granting of consent, I am satisfied in respect of the matters outlined at s 2.12 of the RH SEPP on the basis of the Joint Expert Geotechnical Report, Geotechnical Assessment prepared by JK Geotechnics (dated 4 August 2025) and the recommended conditions of consent. Further, I note in respect of s 2.13 of the RH SEPP that no certified coastal management program applies to the land.

9. I am also satisfied that consideration has been given as to whether the site is contaminated as required by s 4.6 of the RH SEPP and that it is suitable for the proposed use based on the Statement of Environmental Effects prepared by GSA Planning (dated 17 July 2024), the parties’ agreement and the site’s existing (and history of) residential use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

10. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas and it is noted that the proposal seeks consent for tree removal and therefore the provisions of Ch 2 do not apply.

11. The site is located within the Sydney Harbour Catchment regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 Water Quality and Quantity, s 6.7 Aquatic Ecology, s 6.8 Flooding, s 6.9 Recreation and Public Access and s 6.10 Total Catchment Management (in so far as they are applicable) on the basis of the parties’ agreement, the Joint Expert Stormwater Report, the amended stormwater plans and Stormwater Management Plan (C & M Consulting Engineers, dated 12 August 2025) and the conditions of consent.

12. The site is also located within the Foreshores and Waterways Area to which Ch 6 Pt 6.3 of the BC SEPP applies. On the basis of the parties’ agreement, the Statement of Environmental Effects prepared by GSA Planning (dated 17 July 2024) and the amended plans, I am satisfied that consideration has been given to the matters required in accordance with s 6.28(2).

State Environmental Planning Policy (Precincts – Eastern Harbour City) 2021

13. The site is located within the Sydney Opera House Buffer zone in accordance with s 1 Pt 1 of Appendix 1 of State Environmental Planning Policy (Precincts - Eastern Harbour City) 2021. Based on the parties’ agreement, the Visual Impact Assessment prepared by Urbaine Design Group (dated 4 August 2025) and the amended plans, I am satisfied that consideration has been given to the matters required.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. A BASIX Certificate has been submitted prepared by Integreco Consulting (Cert No. 1749772S_02 dated 31 May 2024) as required by s 27 of the EPA Reg. The parties have advised that a new certificate is not required in the circumstances as the amended proposal is not materially different from the development the subject of the certificate. Rather a condition of consent is imposed to require an amended certificate prior to the issue of a construction certificate. Further, the embodied emissions of the proposal have been quantified as required by s 2.1(5) of the SB SEPP.

North Sydney Local Environmental Plan 2013

15. The development is for the purposes of a dwelling house which is permissible with consent in the R4 High Density Residential zone, in which the site is located, pursuant to North Sydney Local Environmental Plan 2013 (NSLEP).

16. The development has regard to the objectives of the R4 High Density Residential zone as required by cl 2.3.

17. Demolition of the existing building on site is permissible with consent in accordance with cl 2.7 of NSLEP.

18. Under cl 4.3 of NSLEP, a maximum height of 12m applies to the subject land. The development compiles with this requirement having a maximum height of 9.69m.

19. In respect of cl 6.10 earthworks, the parties advise that adequate consideration has been given to the mandatory matters in the Joint Expert Geotechnical Report, Geotechnical Assessment prepared by JK Geotechnics (dated 4 August 2025) and the recommended conditions of consent and that the proposed development is acceptable in respect of these considerations.

Other Matters

20. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

21. The Respondent notified the original development application between 9 to 23 August 2024. A total of 32 submissions were received in response to the notification. Further, five objectors addressed the Court at the commencement of the site view on behalf of a number of neighbours. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions. In this regard, I note that further amendments to the application were made during the conciliation conference to remove part of the built form on Level 2 to improve view sharing to properties to the north, to increase the eastern building setback to 3m, to increase the available landscape area and to reduce the proposed site coverage. Further, conditions were agreed in respect of the construction management arrangements to address load limits and the timing of use of the adjacent driveway.

Conclusion

22. 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)).

23. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

24. The orders of the Court are:

25. The appeal is upheld.

26. Development Application 175/24, as amended, for the demolition of a dwelling house, removal of one tree and the construction of a dwelling house and associated works at 35 East Crescent Street, Lavender Bay (Lot 3 DP 323406) is determined by the grant of consent, subject to the conditions contained at Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (430 KB, pdf)

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