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[2025] NSWLEC 1916
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-23
Washington C
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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: Luchetti v North Sydney Council [2025] NSWLEC 1916
Hearing dates: Conciliation conference on 11 December 2025
Date of orders: 23 December 2025
Decision date: 23 December 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA 105/2025 for part demolition, alterations and additions to an existing dwelling including construction of a basement, reconfiguration of internal layout and rear extension of ground floor and first floor to the south, fenestration changes, landscaping and associated works at 7 Victoria Street, McMahons Point NSW 2060 is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPLICATION — alterations and additions to dwelling house — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38
North Sydney Local Environmental Plan 2013, cll 4.3, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
Category: Principal judgment
Parties: Rachel Luchetti (First Applicant)
Gerard Cook (Second Applicant)
North Sydney Council (Respondent)
Representation: Counsel:
J Reid (Applicants)
M Astill (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicants)
North Sydney Council (Respondent)
File Number(s): 2025/291246
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by North Sydney Council, of Development Application 105/2025 which seeks consent for the part demolition, alterations and additions to an existing dwelling house including construction of a basement, reconfiguration of internal layout and rear extension of the ground floor and first floor to the south, fenestration changes , landscaping and associated works at 7 Victoria St, McMahons Point.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 December 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to address their concerns.
Under s 34(3) of the LEC 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 23 May to 6 June 2025. 16 submissions were received, and 6 residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions, with particular focus on issues relating to construction impacts, overshadowing, views and character.
The subject site is zoned R3 Medium Density Residential under the North Sydney Local Environmental Plan 2013 (NSLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to NSLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard with a maximum height of 6.2m.
The site is not identified as a heritage item, but is located within the Union, Bank and Thomas Streets Heritage Conservation Area (HCA). From the Heritage Impact Statement by John Oultram Heritage and Design Pty Ltd dated February 2025, and the parties’ submission, I accept that the impact of the proposed development on the heritage significance of the HCA is acceptable.
NSLEP cl 6.10 sets out matters relating to earthworks that must be considered before the granting of development consent. From the parties’ submission, the Structural Engineering Report by Keystone Structural Engineers Pty Ltd dated 6 January 2025, the Excavation Management Plan by Reconn Pty Ltd dated 31 October 2025, the Geotechnical Statement by JK Geotechnics Pty Ltd dated 5 November 2025 and the amended architectural drawings by Luchetti Krelle Pty Ltd, I accept that the matters listed in cl 6.10(3) have been considered and the proposed earthworks are acceptable.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. From the parties’ submission, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the ongoing residential use.
The site is located within the Sydney Harbour Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. From the amended application and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
Pursuant to s 27 of the EPA Regulation a BASIX certificate, that relates to the development as amended, accompanies the application.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
North Sydney Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the amendment to the Development Application DA 105/2025 to rely on the following amended plans and documentation:
(a) Architectural plans prepared by Luchetti Krelle Pty Ltd as follows:
| Drawing No. | Description | Date | Revision | | 001 | Demolition plan – basement | 18.09.2025 | F | | 002 | Demolition plan – ground | 19.09.2025 | F | | 003 | Demolition plan – level 01 | 19.09.2025 | F | | 004 | Demolition plan – roof | 19.09.2025 | F | | 101 | Site plan - proposed | 07.10.2025 | G | | 111 | Plan – Basement | 14.11.2025 | H | | 112 | Plan – ground | 14.11.2025 | H | | 113 | Plan – first floor | 07.10.2025 | G | | 114 | Plan – roof | 07.10.2025 | G | | 201 | Elevation – north | 07.10.2025 | G | | 202 | Elevation – south | 07.10.2025 | G | | 203 | Elevation – east | 07.10.2025 | G | | 204 | Elevation - west | 07.10.2025 | G | | 301 | Section A | 18.09.2025 | F | | 302 | Section B | 18.09.2025 | F | | 601 | Area diagram | 19.09.2025 | F | | 651 | June 21st shadow diagrams – plan existing | 07.10.2025 | G | | 651a | June 21st shadow diagrams – plan existing | 07.10.2025 | G | | 652 | June 21st shadow diagrams – plan proposed | 07.10.2025 | G | | 652a | June 21st shadow diagrams – plan proposed | 07.10.2025 | G | | 653 | Shadow diagrams – 3D views | 19.09.2025 | F | | 654 | Shadow diagrams – dining room/kitchen | 19.09.2025 | F | | 655 | June shadow comparison diagrams | 19.09.2025 | F | | 656 | June shadow comparison diagrams | 19.09.2025 | F | | 657 | June shadow comparison diagrams | 19.09.2025 | F | | 658 | March shadow comparison diagrams | 19.09.2025 | F | | 659 | March shadow comparison diagrams | 19.09.2025 | F | | 670 | March shadow comparison diagrams | 19.09.2025 | F | | 671 | Neighbour shadow comparison diagrams – Kitchen window – March 21st | 07.10.2025 | G | | 672 | Neighbour shadow comparison diagrams – Kitchen window – June 21st | 07.10.2025 | G | | 700 | Window schedule | 07.10.2025 | G | | 801 | Finishes | 07.10.2025 | G | | 802 | Window shaping devices | 19.09.2025 | F | | 901 | 3D – DA RevD vs Proposed RevF | 19.09.2025 | A | | 902 | 3D – Views from 2 & 10 Mitchell St | 19.09.2025 | A |
(b) Landscape plan prepared by Michael Cooke Garden Design Pty Ltd as follows:
| Drawing No. | Description | Date | Revision | | Luch.Con.02 | Landscape Plan DA_revB | 16.09.2025 | B | | Luch.Con.03 | Landscape Plan DA_revB | 16.09.2025 | B |
(c) Excavation management plan prepared by Reconn Pty Ltd dated 31 October 2025 (d) Geotechnical statement prepared by JK Geotechnics Pty Ltd dated 5 November 2025 (e) BASIX Certificate A1777249_03 dated 10 November 2025
The Court orders:
The appeal is upheld.
Development Application DA 105/2025 for part demolition, alterations and additions to an existing dwelling including construction of a basement, reconfiguration of internal layout and rear extension of ground floor and first floor to the south, fenestration changes, landscaping and associated works at 7 Victoria Street, McMahons Point NSW 2060 is determined by the grant of development consent subject to the conditions at Annexure A.
Annexure A (495 KB, pdf)
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Luchetti
North Sydney Council [2025] NSWLEC 1916