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[2025] NSWLEC 1709
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-30
Pullinger AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kirk v North Sydney Council [2025] NSWLEC 1709
Hearing dates: Conciliation conference held on 28 April, 22 May, 6 June, 3 July and 1, 13 and 21 August 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction: Class 1
Before: Pullinger AC
Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA155/24 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.
(3) The appeal is upheld.
(4) Consent is granted to Development Application DA155/24 (as amended) for demolition works and construction of a residential apartment building at 34C Pine Street, Cammeray, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – residential apartment building development – cl 4.6 written request – height of buildings – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.65, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38, 163, 166 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.7, 6.6, Ch 2, 6 State Environmental Planning Policy (Housing) 2021, s 47, Pt 3, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, Ch 4 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 North Sydney Local Environmental Plan 1989 North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.3, 4.6, 5.10, 6.10
Cases Cited: Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147
Category: Principal judgment
Parties: Gary Steven Kirk (Applicant)
North Sydney Council (Respondent)
Representation: Counsel:
T Sattler (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Sattler and Associates (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/431386
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Gary Steven Kirk (the Applicant), against the deemed refusal of Development Application DA155/24 (the DA) by North Sydney Council (the Respondent).
At the date of its lodgement on 17 July 2024, the DA sought consent for the demolition of an existing residential apartment building, excavation, tree and vegetation removal, and construction of a four-storey residential apartment building comprising three dwellings, with basement car parking and associated works at 34C Pine Street, Cammeray (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 28 April, 22 May, 6 June, 3 July and 1, 13 and 21 August 2025. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of existing use rights, inconsistency with the land use zone objectives, excessive building height, adverse heritage impacts, inadequate side and rear setbacks, excessive excavation given site topography and existing rock outcrops, and inadequate waste management provisions, amongst other contentions.
Agreed design amendments have been made to improve the proposed building’s relationship to the site and its context. Additional information has been provided by the Applicant, which is agreed to resolve the issue of permissibility, establishing that the site benefits from an existing use right as a residential apartment building. Amendments have been made to reduce the proposal’s building footprint, height, bulk and scale, particularly to increase the rear setback, which in turn significantly reduces the extent of excavation necessary and retains more of the existing rock face at the rear of the site. The proposed architectural expression has been refined, and in concert with the amendments to the primary building form, renders the proposal compatible with the Heritage Conservation Area (HCA).
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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.
The DA was publicly notified in accordance with the Respondent’s Community Participation Plan from 2 to 16 August 2024. A total of five submissions were received by the Respondent raising concerns including:
Excessive bulk, scale and building height.
Inconsistency with the existing character of the local area and relevant development controls for Zone R2 Low Density Residential under the North Sydney Local Environmental Plan 2013 (NSLEP).
Inadequate setbacks to adjoining properties resulting in overshadowing of habitable rooms and private open space, cross viewing and privacy impacts, and loss of visual amenity including views to Middle Harbour.
Environmental impacts arising from excavation of the rock outcrop and removal of vegetation, including vibration, land instability and drainage.
Excessive heat and glare caused by proposed treatment of concrete roof.
Incorrect approach to development on the site relying upon existing use rights.
The proposed development cannot be facilitated by existing use rights because it includes land not previously used for the existing use.
Incompatibility with conservation and heritage values of the local area.
At the commencement of the conciliation conference, at the site on the morning of 28 April 2025, a number of affected local residents addressed the Court to restate their concerns.
During the adjourned conciliation conference, I made time available to allow the Applicant to further amend the DA, in an effort to resolve the Respondent’s contentions and address objector’s concerns.
The amended DA was informally re-notified to a number of people who had previously objected to the DA. The re-notification took place from 11 to 25 July 2025. Two further submissions were received in response restating a number of concerns including:
The reliance upon existing use rights.
Excessive height, bulk and scale.
Excessive excavation proposed which interferes with natural landform, existing vegetation, and creates potential interference with groundwater flows.
Overshadowing of neighbouring properties.
Potential air pollution from proposed fireplaces.
The parties agree, and I am satisfied, that the amended DA addresses and mitigates against a range of concerns raised by objectors, primarily by reducing the proposed building form, bulk and scale, and by ensuring improved privacy between neighbouring properties, which reduces opportunities for cross viewing.
The parties agree, and I am satisfied, that the amended DA and conditions of consent have now satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the NSLEP is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The amended DA - characterised as residential apartment (or flat) development - is an innominate prohibited use in the R2 Zone. However, the Applicant relies upon existing use rights for the permissibility of the amended DA.
More specifically, the Applicant has provided legal advice, submitted with the DA, to substantiate that the use of the existing building for the purposes of residential apartments, is an ‘existing use’ for the purposes of s 4.65(b) of the EPA Act - being a use for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use.
In this case, the relevant environmental planning instrument, which had the effect of prohibiting development for the purposes of residential apartment buildings, was the North Sydney Local Environmental Plan 1989. Such development has been prohibited within the R2 Zone Land since that time.
Submissions received by the Respondent raised concerns that the site does not benefit from existing use rights since the existing building comprises two attached apartments which would presently be characterised as ‘dual occupancy (attached)’, being a use that is permissible with consent under NSLEP, and therefore excluded from the scope of existing use rights under the EPA Act.
The parties agree, and I am satisfied, that consistent with Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147, the appropriate level of generality with which to describe the existing use is as a building containing two residential apartments. As development for the purposes of residential apartments is not permissible on land zoned R2 Low Density Residential under the current NSLEP (or its predecessors since 1989), the use of the building for that purpose is prohibited, and hence able to be considered an existing use.
It then follows, pursuant to ss 163(1)(c) and 166 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), that the amended DA proposes the rebuilding of an existing use for the purposes of residential apartments (and no other use). And, by analysis of the existing building, its occupation, unaltered interior layout and rental evidence provided by the Applicant, I am satisfied that the existing use right of residential apartment building has not been abandoned.
The parties agree, and I am satisfied, that pursuant to cl 2.3 of the NSLEP, the amended DA is consistent with the R2 zone objectives, noting the reliance upon existing use rights.
The parties agree, and I am satisfied, that pursuant to cl 2.7 of the NSLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.
The parties agree, and I am satisfied, that all relevant principal development standards of the NSLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.
Clause 4.6(3) of the NSLEP requires the consent authority (the Court in this instance) to be satisfied. The Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
The Applicant has provided a written document seeking to vary the height of buildings development standard, prepared by Vaughan Milligan Development Consulting Pty Ltd and dated June 2025.
Pursuant to cl 4.3 of the NSLEP the site is subject to a height of building development standard of 8.5m.
The amended DA proposes a maximum building height of 9.24m, exceeding the height of building development standard by 740mm and representing a variance of approximately 8.71%.
The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:
The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.
The majority of the proposed building complies with the development standard, while that portion of the building which exceeds 8.5m is limited to a relatively small area, generally associated with the upper-most floor, which in turn is set back from the front of the site as it presents to the streetscape.
The height exceedance arises primarily as a result of the site’s steeply sloping topography.
The amended DA generally presents as a three-storey building to the primary street, with a fourth level set back to recede from public vantage points within the streetscape.
The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.
The relevant objectives of the NSLEP R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment; to encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area; and to ensure that a high level of residential amenity is achieved and maintained. I am satisfied the amended DA is consistent with these objectives.
The relevant objectives of cl 4.3 of the NSLEP - Height of buildings - include to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient; to promote the retention and, if appropriate, sharing of existing views; to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development; to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings; to ensure compatibility between development, particularly at zone boundaries; to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area; and to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living. I am satisfied the amended DA is consistent with these objectives.
Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.
The parties agree, and I am satisfied, that pursuant to cl 5.10 of the NSLEP - Heritage conservation - the site is not an identified heritage item. However, it is situated within the Plateau HCA. Accordingly, the Applicant has provided a Heritage Impact Statement, prepared by NBRS. This document assesses the amended DA against the heritage values evident in the HCA and nearby heritage items. I am satisfied the amended DA will not result in any adverse impacts on the significance of heritage items or the HCA.
The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.10 of the NSLEP - Earthworks. During the conciliation conference the DA was amended to significantly reduce the extent of excavation proposed, reducing both area and volume. I am satisfied the matters set out at cl 6.10(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.
Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.
Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA seeks consent for the removal of vegetation and proposes appropriate replacement trees. The necessary permit to clear vegetation required by s 2.7 of SEPP BC is provided by the development consent made pursuant to this appeal.
Chapter 6 of SEPP BC deals with water catchments and is relevant to the amended DA. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment.
Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.
The parties agree, and I am satisfied, that the amended DA is consistent with the relevant provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No. 1748600M_02, dated 26 June 2025, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.
Section 2.48 of SEPP Infrastructure applies to the amended DA since the site is within 5m of overhead power lines. The amended DA was referred to the electricity supply authority, Ausgrid, which did not object to the proposed development, subject to the imposition of conditions, which have been adopted by the parties.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Housing) 2021 (SEPP Housing) is an additional relevant environmental planning instrument.
Part 3 of Ch 2 of SEPP Housing applies to the amended DA because the existing building on the site is a ‘low-rental residential building’ as defined, specifically because it was used (in the period commencing five years before the DA was lodged) as a residential apartment building containing two low-rental dwellings.
Section 47(2) of SEPP Housing requires that, in determining whether to grant consent to development for the purposes of demolishing a low-rental residential building, a number of matters are to be taken into account.
Accordingly, the parties agree, and I am satisfied, that the amended DA will reduce the amount of affordable housing in the area. It is further agreed that the imposition of a condition of consent requiring the payment of a monetary contribution for the purposes of providing affordable housing will mitigate against the reduction.
The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the final amended DA warrants the grant of consent, subject to conditions.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.
The Applicant has lodged the amended DA with the Court on 21 August 2025.
The Court orders that:
Leave is granted to the Applicant to amend Development Application DA155/24 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.
The appeal is upheld.
Consent is granted to Development Application DA155/24 (as amended) for demolition works and construction of a residential apartment building at 34C Pine Street, Cammeray, subject to the conditions of consent at Annexure A.
Annexure A (751 KB, pdf)
Architectural Plans (20.7 MB, pdf)
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Removed underlining
Kirk
North Sydney Council [2025] NSWLEC 1709