Dugal v North Sydney Council

Category: Principal judgment

Parties: Pradnya Dugal (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
T To (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/150766

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 246/24, as amended, for alterations and additions to an approved dwelling house, including changes to internal wall placement and layout, alteration of external walls and fenestration, and addition of an east-facing balcony at 37 Bay View Street, Lavender Bay (Lot 2, DP 413201) (the Site) by North Sydney Council. The application amends Development Application 418/21 for which consent was issued on 29 June 2023.

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 4 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 reports and the documents that are referred to in Condition 1 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 Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 30 July 2025 and are listed under Condition A1 of the conditions of consent at Annexure A. Changes made to the proposal to address the contentions include:

6. Increase of setback to garage area from nil to 900mm, and

7. Associated movement of bin storage area to northern setback area in line with previously approved location.

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 do not apply as the site is also within the Foreshores and Waterways Area within the meaning of State E nvironmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP).

8. As required as precondition of the granting of consent, I am satisfied in respect of the matters outlined at ss 2.12 and 2.13 on the basis that the proposal does not result in any substantive changes to excavation, earthworks or the approved development footprint that would affect coastal hazard and as no coastal management program applies to the site.

9. I am also satisfied that consideration has been given as to whether the site is contaminated as required by s 4.6 of RH SEPP and that it is suitable for the proposed use based on the existing consent, the parties’ agreement and the site’s existing (and history of) residential use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

10. The site is located within the Sydney Harbour Catchment regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Part 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 original consent and the conditions of consent.

11. 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 original consent, the view analysis (Architecture Saville Isaacs, 30/8/2024) and the amended plans I am satisfied in respect of the matters required to be satisfied at s 6.28(2).

State Environmental Planning Policy (Sustainable Buildings) 2022

12. The proposal is BASIX affected 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 Architecture Saville Isaacs (Cert No. A1802844 dated 4 July 2025) as required by s 27 of the EPA Reg. Further the embodied emissions of the proposal have been quantified in accordance with s 2.1(5) of the SB SEPP.

North Sydney Local Environmental Plan 2013

13. The development is for the purposes of alterations to an approved dwelling house which is permissible with consent in the R3 Medium Density Residential zone, in which the site is located, pursuant to North Sydney Local Environmental Plan 2013 (NSLEP).

14. The development has regard to the objectives of the R3 Medium Density Residential zone as required by cl 2.3.

15. Under cl 4.3 of NSLEP a maximum height of 8.5m applies to the subject land. The development the subject of the original consent has a maximum height of 8.45m and is therefore compliant. The proposed height under this development application is consistent with this approval however as a result of basement excavation, that has occurred since approval of the original application, the proposed development now has a technical maximum height of 12.055m and therefore does not comply with the development standard. A variation request in accordance with cl 4.6 of NSLEP has therefore been submitted seeking to vary the building height development standard. I am satisfied that consent should be granted notwithstanding the contravention of the building height development standard having regard to the circumstances of the case. In particular I am satisfied that:

16. The written request, dated June 2025 prepared by BBC Consulting Planners, lodged pursuant to cl 4.6 of the NSLEP adequately establishes sufficient environmental planning grounds that justify the breach in the building height development standard.

17. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

18. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

Other Matters

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

17. The Respondent notified the original development application between 25 October and 8 November 2024. A total of five submissions were received in response to the notification, three within and two outside of the notification period. Further two objectors addressed the Court at the commencement of the site view. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

18. 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)).

19. 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

20. The orders of the Court are:

21. The appeal is upheld.

22. Development Application No. 246/24, as amended, for alterations and additions to an approved dwelling house, including changes to internal wall placement and layout, alteration of external walls and fenestration, and addition of an east-facing balcony at 37 Bay View Street, Lavender Bay (Lot 2, DP 413201) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (256 KB, pdf)

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