Equicentia Pty Ltd v North Sydney Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34

Category: Principal judgment

Parties: Equicentia Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/64238

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA363/24 (DA) by North Sydney Council (Council).

2. The DA, as amended, seeks consent for demolition of existing structures and construction of a 5-storey residential flat building with two levels of basement parking and a rooftop terrace on land at 111-115 Chandos Street, Crows Nest, legally identified as Lots 28 and 29, Section 6, DP 2872 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (Court Act), at which I presided. The conference was held on 7 August 2025.

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

5. 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 the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments (Class 1), the bundle of documents provided with the agreement (s 34 bundle), and the documents in 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.

6. The Court, standing in the shoes of Council as the relevant consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, as set out below.

8. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. Eight submissions were received, with seven supporting and one objecting to the DA. The parties advise that the submissions have been considered and the relevant matters addressed, noting that the amended DA increases the proposed setbacks, landscaped areas and deep soil, and reduces the site coverage.

State Environmental Planning Policy (Transport and Infrastructure) 2021

9. Section 2.119(2) applies because Chandos Street is a classified road. The mandatory matters under that section are addressed in the Statement of Environmental Effects (p 17) and I am satisfied the requirements are met. Access to the site is provided by Atchison Lane, not Chandos Street. The DA is not a traffic-generating development listed in Sch 3.

State Environmental Planning Policy (Housing) 2021

10. Chapter 4 applies because the DA seeks consent for a residential flat building.

11. Pursuant to s 145(2), North Sydney Design Excellence Panel has considered the DA and provided advice on the quality of the design. The recommendations of the design review panel have been taken into consideration in the amended DA (s 147(1)(c)).

12. Pursuant to ss 147(1)(a) and (b), a statement addressing the design quality of the amended DA in accordance with the design quality principles and the consistency of the amended DA with the Apartment Design Guide has been prepared by SJB Architects (dated 2 June 2025). I am satisfied that adequate regard has been given to the design quality principles and the relevant objectives specified in the Apartment Design Guide, as required under s 147.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Part 6.2 and applies because the site is identified as being within the Sydney Harbour Catchment. The statement of environmental effects and the stormwater management plan prepared by Stantec and dated 11 November 2024 address the mandatory matters under ss 6.6, 6.7, 6.8, 6.9 and 6.10. I have considered these matters and am satisfied that the DA includes appropriate controls for treatment and control of stormwater runoff, designed to improve the quality of stormwater and minimise pollutant transfer to receiving waters. The incorporation of on-site stormwater retention measures will ensure the DA has a neutral or beneficial effect on the quality of water entering Sydney Harbour (condition 12). I am satisfied that the requirements of these provisions are met.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. An updated BASIX Certificate accompanies the amended DA as required by s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022 and Sch 7 of the EPA Regulation. This includes an embodied energy report.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. Pursuant to s 4.6(1), a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so. As set out in the statement of environmental effects, the site has historically been used for residential development and is not identified as contaminated nor in the vicinity of any sites on the NSW Environmental Protection Agency's list of notified sites. The parties are satisfied and I accept that the requirements of s 4.6 are met.

North Sydney Local Environmental Plan 2013

16. The site is located within Zone R4 High Density Residential. The parties agree and I accept that the DA is permissible with consent and consistent with the relevant zone objectives.

17. The site is subject to a maximum building height control of 16 m pursuant to cl 4.3 of North Sydney Local Environmental Plan 2013 (NSELP). The DA has a maximum height of 20.5 m, exceeding the standard by 4.5m (28.1%) at the highest point. Pursuant to cl 4.6, the DA is supported by a Clause 4.6 Variation Request prepared by Planning & Co. The parties agree and I am satisfied that the requirements of cl 4.6 are met for the following reasons:

18. The height exceedance arises largely as a result of the core and lift overrun, which enable the provision of communal open space on the rooftop;

19. The height exceedance arises also due to flood planning, as the building has been raised to allow for safe flood ingress and egress; and

20. The proposed building height does not contribute to unacceptable impacts on the streetscape or surrounding development.

21. Therefore, for the reasons stated in the written request the height variation is upheld.

22. Clause 5.21 applies because the site is mapped as a 'flood planning area'. Flooding is assessed in the statement of environmental effects and the flood report submitted with the Class 1. The DA has been designed to flood levels provided by Council. Conditions C5, 11, 12, 13, 31, 32 and 38 provide for final resolution of stormwater planning at the Construction Certificate stage. The parties agree and I am satisfied of the matters under cl 5.21.

23. I have considered the matters at cl 6.10(3), noting the site is currently excavated to all for boundaries. The statement of environmental effects and the geotechnical report prepared by Core Geotech Pty Ltd dated 14 November 2024 consider matters including subsurface conditions, excavation conditions, and groundwater. The parties agree and I am satisfied that the requirements of cl 6.10 are met.

Other considerations

21. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable and in the public interest.

22. While not a jurisdictional matter, the parties are satisfied that the DA, as amended, either complies with the relevant controls or is consistent with the relevant objectives in North Sydney Development Control Plan 2013.

Conclusion

23. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

24. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

25. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation:

26. The Court notes that:

27. The Court standing in the shoes of North Sydney Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the Applicant amending DA363/24 in accordance with the following plans and documentation (Amended Application):

(a) Architectural plans prepared by SJB Architects:

| Drawing No. | Rev | Title | Date | | DA-0001 | 11 | Cover Page & Drawing List | 2 June 2025 | | DA-0010 | 11 | Location Plan | 2 June 2025 | | DA-0100 | 11 | Site Plan - Existing | 2 June 2025 | | DA-0101 | 11 | Site Analysis | 2 June 2025 | | DA-0301 | 11 | Demolition Plan | 2 June 2025 | | DA-0302 | 11 | Excavation Diagram | 2 June 2025 | | DA-1001 | 11 | Floor Plan - Basement 02 | 2 June 2025 | | DA-1002 | 11 | Floor Plan - Basement 01 | 2 June 2025 | | DA-1003 | 11 | Floor Plan - Ground Floor | 2 June 2025 | | DA-1004 | 11 | Floor Plan - Level 1 | 2 June 2025 | | DA-1005 | 11 | Floor Plan - Level 2 | 2 June 2025 | | DA-1006 | 11 | Floor Plan - Level 3 | 2 June 2025 | | DA-1007 | 11 | Floor Plan - Level 4 | 2 June 2025 | | DA-1008 | 11 | Floor Plan - Roof | 2 June 2025 | | DA-1009 | 11 | Floor Plan - Roof 2 | 2 June 2025 | | DA-1401 | 11 | Elevation North & South | 2 June 2025 | | DA-1402 | 11 | Elevation East & West | 2 June 2025 | | DA-1411 | 11 | Flood Planning Level Elevation Diagrams | 2 June 2025 | | DA-1421 | 11 | Elevation North & South - Coloured Diagram | 2 June 2025 | | DA-1422 | 11 | Elevation East & West - Coloured Diagram | 2 June 2025 | | DA-1501 | 11 | Section A | 2 June 2025 | | DA-1502 | 11 | Section B | 2 June 2025 | | DA-1503 | 11 | Section C | 2 June 2025 | | DA-4401 | 11 | Adaptable Apartment Layout - Ground Floor | 2 June 2025 | | DA-4402 | 11 | Adaptable Apartment Layout - Level 1 | 2 June 2025 | | DA-4403 | 11 | Adaptable Apartment Layout - Level 4 | 2 June 2025 | | DA-8001 | 11 | Solar Analysis - Shadow Diagrams | 2 June 2025 | | DA-8002 | 11 | Solar Analysis - Shadow Diagrams | 2 June 2025 | | DA-8003 | 11 | Solar Analysis - Shadow Diagrams Autumn Equinox | 2 June 2025 | | DA-8004 | 11 | Solar Analysis - Shadow Diagrams Autumn Equinox | 2 June 2025 | | DA-8005 | 11 | Solar Analysis - Shadow Diagrams Spring Equinox | 2 June 2025 | | DA-8006 | 11 | Solar Analysis - Shadow Diagrams Spring Equinox | 2 June 2025 | | DA-8011 | 11 | Solar Analysis - Views from the Sun - Existing | 2 June 2025 | | DA-8012 | 11 | Solar Analysis - Views from the Sun - Proposed | 2 June 2025 | | DA-8021 | 11 | Solar & Cross Ventilation Analysis | 2 June 2025 | | DA-8052 | 11 | LEP Height Plane Diagram - Proposed | 2 June 2025 | | DA-8061 | 11 | DCP Envelope Diagram - Existing | 2 June 2025 | | DA-8062 | 11 | DCP Envelope Diagram - Proposed | 2 June 2025 | | DA-8063 | 11 | LEP Height Plane Diagram - Height Exceedance | 2 June 2025 | | DA-8101 | 11 | GFA Calculation | 2 June 2025 | | DA-8103 | 11 | Communal Open Space & Site Coverage Calculation | 2 June 2025 | | DA-8104 | 11 | Eastern Setback Diagram | 2 June 2025 | | DA-8201 | 11 | Photo Montage - View 01 | 2 June 2025 | | DA-8202 | 11 | Photo Montage - View 02 | 2 June 2025 | | DA-8203 | 11 | Photo Montage - View 03 | 2 June 2025 | | DA-8211 | 11 | External Materials | 2 June 2025 |

(b) Schedule of Amendments prepared by SJB Architects dated 29 May 2025. (c) Landscape Plans prepared by Black Beetle Pty Ltd

| Drawing No. | Issue | Title | Date | | LA LP 101 | 06 | Cover Sheet | 2 June 2025 | | LA LP 102 | 07 | Landscape Plan – Ground Floor | 2 June 2025 | | LA LP 103 | 06 | Landscape Plan - Level 04 | 2 June 2025 | | LA LP 104 | 06 | Landscape Plan - Roof | 2 June 2025 |

(d) Urban Design Position Paper prepared by Smith & Tzannes dated 9 May 2025. (e) Revised Clause 4.6 Variation to Development Standard – Height of Buildings prepared by Planning & Co 5 June 2025. (f) Design Verification Statement prepared by SJB Architects dated 2 June 2025. (g) Letter prepared by Hoang Pham Consulting Engineers dated 11 April 2025. (h) Letter prepared by Black Beetle dated 5 May 2025. (i) Letter prepared by TTM Consulting Pty ltd dated 8 May 2025. (j) BASIX Certificate No. 1774535M dated 25 November 2024. (k) BASIX Assessment Report prepared by ESD Synergy dated 25 November 2024.

Orders

27. The Court orders that:

28. The appeal is upheld.

29. The cl 4.6 request prepared by Planning & Co dated 5 June 2025 in relation to a variation to cl 4.3 (Height of buildings) of the North Sydney Local Environmental Plan 2013 is upheld.

30. Development consent is granted to DA363/24 for the demolition of the existing structures and construction of a 5-storey residential flat building with 2 levels of basement carparks and rooftop terrace on land of 111-115 Chandos Street, Crows Nest, subject to the conditions set out in Annexure A.

31. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed within 90 days of the date of these orders.

A Thorpe

Acting Commissioner of the Court

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Annexure A (808 KB, pdf)