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[2025] NSWLEC 1389
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-04
Targett 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: Made Property NSW Pty Ltd v North Sydney Council [2025] NSWLEC 1389
Hearing dates: Conciliation Conference 30 January 2025
Date of orders: 04 June 2025
Decision date: 04 June 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent DA88/23, which was originally granted by the Land and Environment Court on 11 April 2024 (see Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173) is modified in the terms at Annexure A.
(3) Development Consent DA88/23 is subject to the consolidated, modified conditions of consent at Annexure B.
Catchwords: APPEAL – Modification Application – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Land and Environment Court Act 1979, ss 17, 34
Environmental Planning and Assessment Regulation 2021, s 113
North Sydney Local Environmental Plan 2014, cll 4.3, 4.4, 4.6, 5.10, 6.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, 6.3
State Environmental Planning Policy (Housing) 2021, Ch 4, s 144, Sch 9
State Environmental Planning Policy (Precincts – East Harbour City) 2021, Appendix 1, Pt 1
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11Environmental Planning and Assessment Regulation 2021, cl 113
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Cases Cited: Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173
Texts Cited: North Sydney Development Control Plan 2013
Category: Principal judgment
Parties: Made Property NSW Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
K Gerathy (Solicitor) (Respondent)
Solicitors:
Sattler & Associates Pty Ltd (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2024/379716
Publication restriction: Nil
This matter concerns an appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant seeking to modify DA/88/23 (Original Consent). The Original Consent was granted by the Land and Environment Court on 11 April 2024 (see Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173) and approved the demolition of an existing residential flat building (RFB) (at 75 Kirribilli Avenue, Kirribilli), construction of a new RFB in that location, and alterations and additions to an existing RFB at 77 Kirribilli Avenue, Kirribilli, and lot consolidation, at land identified as Strata Plan 10459 and Strata Plan 13646, known as 75-77 Kirribilli Avenue, Kirribilli (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Modification Application sought to amend the Original Consent by:
At 75 Kirribilli Avenue, Kirribilli (75 Kirribilli):
(a) relocation and redesign of the fire stair; (b) introduction of glazed skylights on the roof of the new building; (c) introduction of a rooftop structure to accommodate multiple exhaust vents; (d) rearrangement of apartment layouts; and (e) reconfiguration of openings on the western, northern and eastern façade.
(a) alteration of the configuration of some windows; (b) demolition of the eastern and western facades and their “like for like” replacement; (c) alterations to the methodology for the retention of the remaining northern façade; (d) rearrangement of apartment layouts; and (e) alterations to finished floor levels for Levels 4 and 5.
(a) reconfiguring the basement, including an increase in the overall basement footprint; (b) redesigning the southern façade and linkage between the two buildings; and (c) alterations to the approved landscaping scheme
On 14 October 2024, the applicant commenced these Class 1 proceedings.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 January 2025 and adjourned on multiple occasions. I presided over the conciliation conference.
During the conciliation conference process, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A final signed s 34 agreement was provided to the Court on 23 May 2025 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application include:
further retention of part of the western façade of 77 Kirribilli;
amendments to the “car park supply air” for both buildings;
removal of the proposed skylights at 75 Kirribilli and changes to the proposed roof layout and structures;
amendments to the location of the fire stairs at 75 Kirribilli; and
updated aboricultural information including root mapping and updated landscaping plan,
(Amended Modification Application).
The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.
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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.
Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.
For the purposes of s 4.55(2)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:
the footprint of the proposed development is predominantly the same with a minor increase to the extent of basement excavation within Basement Level 02;
the bulk and scale of the building remains similar, with an adjustment for elements of the originally approved building envelope to provide for improved amenity and layout;
the use of materials and finishes remains similar;
there are no changes to the approved floor space ratio of the Original Consent;
there is a minor 300mm increase to the roof height of 75 Kirribilli for the purposes of services ventilation, which does not impact on the approved roof height of RL30.00;
the presentation to the street of the residential flat buildings and vehicle access remains the same;
substantial elements of the street façade, the west façade, and a portion of the east façade of 77 Kirribilli Avenue will be retained in situ; and
the proposed modifications do not result in a radical transformation of the approved development.
The parties agree that s 4.55(2)(b) of the EPA Act is not relevant in this matter.
In relation to s 4.55(2)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.
The Modification Application was notified between 2 and 24 January 2025 in accordance with the respondent’s Community Participation Plan (CP Plan). Eleven submissions were received in response to the notification raising concerns including:
geotechnical;
view loss;
light pollution and light spill;
unnecessary and unreasonable increase in height;
parking; and
height of landscaping.
The Amended Modification Application was informally re-notified to resident submitters for a period of seven days between 31 March and 7 April 2025 in accordance with the CP Plan. Three submissions were received in respect of the informal re-notification.
In relation to s 4.55(2)(d) of the EPA Act, the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve this matter. To this end, I note that the Court heard from two objectors during the site view associated with the conciliation conference and attended the property of one objector. The parties agree that the relevant concerns of objectors have been considered, and the Amended Modification Application is responsive to the community’s concerns.
In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court – see Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173) for the grant of the Original Consent.
Matters relevant to s 4.15(1) of the EPA Act are considered below.
The parties agree that Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) relating to Coastal Management is relevant to the Amended Modification Application as the Subject Land is located within the Coastal Environment Area and Coastal Use Area.
The parties agree that the Amended Modification Application will not alter the original conclusions reached in respect of the Original Consent. In this regard, the Subject Land’s coastal environment and water impact profile was considered in the granting of the Original Consent, and the consent authority was satisfied that:
there would be no adverse impacts on the integrity and resilience of the biosphere, hydrological or ecological environment; and
the water quality will be maintained through management of the stormwater discharge.
The parties agree, and I accept that, the proposed modifications will not have any adverse impact on the coastal environment and waterways and the matters set out in ss 2.10 and 2.11 of the RH SEPP have been considered and addressed by the Amended Modification Application.
The Subject Land is also subject to the provisions in Ch 4 of the RH SEPP relating to remediation of land.
The parties agree, and I accept that, the Amended Modification Application does not give rise to any further or additional considerations of the RH SEPP beyond what was considered in the granting of the Original Consent.
The parties agree that Ch 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) relating to design of residential apartment development applies to the Amended Modification Application as the proposal comprises development for the purposes of a RFB which meets the specifications outlined in s 144.
Section 147(1) of the Housing SEPP relevantly provides that development consent for residential apartment development must not be modified unless the consent authority has considered specified matters. The Amended Modification Application is accompanied by a Design Verification and Compliance Assessment by EM BE CE dated September 2024 (Design Report) (see Tab 7 of the Class 1 Application) which assesses and supports the proposed development against the design quality principles for residential development set out in Sch 9 of the Housing SEPP and the Apartment Design Guide (ADG).
Having regard to the Design Report and agreement of the parties, I confirm that I have considered the matters relevantly listed in s 147(1) of the Housing SEPP.
Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to vegetation in non-rural areas is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act. Notwithstanding this, the parties agree that the development proposed by the Amended Modification Application will not alter the original conclusions reached in respect of tree and vegetation removal in the granting of the Original Consent.
Chapter 6 of the BC SEPP applies to the proposed development as the Subject Land is located within the Sydney Harbour Catchment and Foreshores and Waterways Area. Parts 6.2 and 6.3 of Ch 6 set out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.
The parties agree, and I accept, that the relevant matters have been considered and satisfied on the basis that:
The Amended Modification Application will have no impact on any publicly accessible area of Sydney Harbour or the enjoyment of the Sydney Harbour as a public resource, to be protected for the public good.
There will be no adverse impact on the environment.
The visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be protected and maintained.
The Letter to Support Stormwater Strategies prepared by Smart Structures Australia dated 19 September 2024 (Stormwater Letter) (see tab 17 of Class 1 Application) confirms that the proposal will not alter the original conclusions made in relation to the approved development regarding:
(a) the treatment and control of stormwater run-off from the Site; and (b) that the proposed development will maintain a neutral or beneficial effect in relation to the quality of water entering a natural waterbody.
State Environmental Planning Policy (Precincts – East Harbour City) 2021 (Precincts SEPP) applies to the Amended Development Application as the Subject Land is located in the Sydney Opera House Buffer Zone (see Appendix 1, Pt 1 of the Precincts SEPP).
The parties agree, and I accept, that:
The Amended Modification Application has been assessed against the relevant considerations set out in Pt 1 and the proposed development will have no impact on the heritage value of the Sydney Opera House (see Heritage Impact Statement prepared by Urbis dated 27 September 2024 at Tab 9 (Heritage Statement) and Heritage Peer Review prepared by Paul Davies dated 24 July 2024 at Tab 8 of the Class 1 Application (Heritage Peer Review)).
All view and vistas will be preserved between the Sydney Opera House and public places within the buffer zone (see Visual Impact Assessment prepared by Urbaine Design Group dated 16 September 2024 at Tab 10 of the Class 1 Application (Visual Impact Assessment)).
There is a minor breach of the approved height control under the Original Consent as a result of the Amended Modification Application, however, the parties agree that any view and vista impacts between public places and the Sydney Opera House have been appropriately minimized as a result of the amended architectural plans. The parties further agree that these impacts are considered negligible and avoid the diminution of its visual prominence when viewed from other places in the buffer zone (see Visual Impact Assessment).
The Subject Land is zoned R4 High Density Residential under the North Sydney Local Environmental Plan 2013 (LEP). I confirm that I have had regard to the R4 zone objectives. The parties agree that the proposed use as a residential flat building is permissible with consent in the R4 zone and remains unchanged from the Original Consent.
For the purposes of cl 4.3 of the LEP relating to height of buildings, the parties agree that the Subject Land is subject to a maximum height control of 12m (Height Standard). The Original Consent approved exceedances to the Height Standard in respect of certain roof vents that were more than 12m above existing ground level. The parties agree that the Amended Modification Application proposes a further increase in height of 300mm on the roof of 75 Kirribilli to that approved by the Original Consent.
The parties agree, and I accept that:
the additional building height only pertains to the roof top ventilation service enclosure and not the roof line;
there are no additional impacts on streetscape or solar as a result of this minor increase;
there is a minor impact on view loss for neighbouring properties; and
there is minimal variation to the cl 4.6 request approved by the Original Consent, having regard to the Visual Impact Assessment.
It is noted that a further cl 4.6 request is not required in this matter as the approval of a modification application is not the grant of development consent.
In relation to cl 4.4 of the LEP relating to floor space ratio (FSR), the parties agree that the Subject Land is not subject to a maximum FSR.
In relation to cl 5.10 of the LEP relating to heritage, the Subject Land is located within the Kirribilli Heritage Conservation Area (Kirribilli HCA) and in the vicinity of a number of individually listed heritage items. Clause 5.10(4) of the LEP relevantly provides that the consent authority must consider the effect of the proposed development on the heritage significance of the item or area concerned. The Amended Modification Application is supported by a Heritage Statement and Heritage Peer Review. Having regard to the Heritage Statement and Heritage Peer Review, I accept the agreement of the parties that there will not be any impact on the heritage items in the vicinity of the Subject Land and that the Amended Modification Application is capable of being approved having regard to cl 5.10 of the LEP.
In relation to cl 6.10 of the LEP relating to earthworks, the consent authority must relevantly consider the matters specified in cl 6.10(3) before granting development consent. The Amended Development Application is relevantly accompanied by the following documents:
Geotechnical Investigation Report prepared by Douglas Partners dated 13 September 2024;
Addendum Geotechnical Memorandums of Advice prepared by Douglas Partners variously dated 17 December 2024, 9 January 2025 and 10 February 2025; and
Construction Methodology Report prepared by Van der Meer dated 7 February 2025,
(collectively, Geotechnical Documents).
Further, the parties agree that:
“The proposed earthworks are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land” (see Jurisdictional Statement, p 6); and
“The increased excavation of Basement 02 will result in more properties falling within the zone of influence as defined in condition C4 and requiring dilapidation assessment and protection. Accordingly, an amendment to the conditions of consent specifying which properties fall within the zone of influence are provided (see Condition C4)” (see Jurisdictional Statement, p 7).
Having regard to the Geotechnical Documents, agreement of the parties, and Agreed Conditions, I confirm that the relevant matters in cl 6.10(3) of the LEP have been considered and the Amended Modification Application is capable of being approved having regard to those matters.
As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, 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 that the respondent, as the relevant consent authority, agrees under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its application to modify DA88/23 to rely upon the following architectural plans and documents:
| Drawing | Date | Prepared By | | 000 Cover Page Rev L | 18.03.2024 | EM BE CE | | 001 Materiality and Photomontage Rev H | 16.01.2025 | EM BE CE | | 010 Site Analysis Plan Rev F | 16.01.2025 | EM BE CE | | 011 Existing Site Plan Rev F | 16.01.2025 | EM BE CE | | 012 Existing Site Boundary Conditions Rev F | 16.01.2025 | EM BE CE | | 013 Proposed Building Separations Rev H | 25.09.2024 | EM BE CE | | 050 Demolition Roof Plan Rev H | 16.01.2025 | EM BE CE | | 051 Demolition L03 Plan Rev J | 07.03.2025 | EM BE CE | | 052 Demolition L04 Plan Rev J | 07.03.2025 | EM BE CE | | 055 Demolition Elevations Rev J | 07.03.2025 | EM BE CE | | 056 Demolition Elevations Rev J | 07.03.2025 | EM BE CE | | 099 Proposed B02 Plan Rev K | 17.02.2025 | EM BE CE | | 100 Proposed B01 Plan Rev L | 17.02.2025 | EM BE CE | | 101 Proposed L01 Plan Rev N | 17.02.2025 | EM BE CE | | 102 Proposed L02 Plan Rev M | 07.02.2025 | EM BE CE | | 103 Proposed L03 Plan Rev O | 07.02.2025 | EM BE CE | | 104 Proposed L04 Plan Rev M | 07.02.2025 | EM BE CE | | 105 Proposed L05 Plan Rev L | 16.01.2025 | EM BE CE | | 107 Proposed Roof Plan Rev J | 07.02.2025 | EM BE CE | | 201 Existing North Street Elevation Rev F | 16.01.2025 | EM BE CE | | 202 Proposed North Street Elevation Rev J | 25.09.2024 | EM BE CE | | 203 Existing South Street Elevation Rev F | 16.01.2025 | EM BE CE | | 204 Proposed South Street Elevation Rev K | 25.09.2024 | EM BE CE | | 211 Proposed North Elevation Rev J | 25.09.2024 | EM BE CE | | 212 Proposed East Elevation Rev L | 07.03.2025 | EM BE CE | | 213 Proposed South Elevation Rev K | 25.09.2024 | EM BE CE | | 214 Proposed West Elevation Rev J | 25.09.2024 | EM BE CE | | 215 Proposed East Internal Building Elevation Rev J | 25.09.2024 | EM BE CE | | 216 Proposed West Internal Building Elevation Rev L | 07.03.2025 | EM BE CE | | 302 Proposed Section B Rev K | 16.01.2025 | EM BE CE | | 401 ADG Compliance Plan - Typical Apartment 01 Rev I | 16.01.2025 | EM BE CE | | 402 ADG Compliance Plan - Typical Apartment 02 Rev I | 16.01.2025 | EM BE CE | | 403 ADG Compliance Plan - Typical Apartment 03 Rev H | 16.01.2025 | EM BE CE | | 405 ADG Compliance Plan - Typical Apartment 05 Rev H | 16.01.2025 | EM BE CE | | 407 ADG Compliance Plan - Typical Apartment 06 Rev H | 16.01.2025 | EM BE CE | | 408 ADG Compliance Plan - Typical Apartment 07 Rev H | 16.01.2025 | EM BE CE | | 409 ADG Compliance Plan - Typical Apartment 08 Rev H | 16.01.2025 | EM BE CE | | 410 ADG Compliance Plan - Typical Apartment 09 (Lower) Rev H | 16.01.2025 | EM BE CE | | 412 Adaptable Apartment Rev G | 25.09.2024 | EM BE CE | | 601 ADG Compliance Schedule Rev G | 25.09.2024 | EM BE CE | | 603 Proposed Excavation Diagram Rev G | 25.09.2024 | EM BE CE | | 604 Proposed Site Coverage Plans Rev H | 25.09.2024 | EM BE CE | | 605 Common Open Space Diagram Rev F | 25.09.2024 | EM BE CE | | 820 Proposed Shadow Plan Diagrams (21 June) Rev F | 25.09.2024 | EM BE CE | | 821 Proposed Shadow Plan Diagrams (21 March, 21 September) Rev F | 25.09.2024 | EM BE CE | | 840 Existing View from the Sun Diagrams (21 June) Rev F | 16.01.2025 | EM BE CE | | 841 Proposed View from the Sun Diagrams (21 June) Rev F | 25.09.2024 | EM BE CE | | 842 Existing View from the Sun Diagrams (21 March, 21 September) Rev F | 16.01.2025 | EM BE CE | | 843 Proposed View from the Sun Diagrams (21 March, 21 September) Rev F | 25.09.2024 | EM BE CE | | 844 East Shadow Elevations Rev D | 25.09.2024 | EM BE CE | | 845 South Shadow Elevations Rev D | 25.09.2024 | EM BE CE | | 846 West Shadow Elevations Rev D | 25.09.2024 | EM BE CE | | 870 Proposed Height Envelope Plan Rev E | 25.09.2024 | EM BE CE | | SC01-D00123 Cover Page Rev E | 06.02.2025 | Dangar Barin Smith | | SC02-D00123 Level 1 Landscape Plan Rev E | 06.02.2025 | Dangar Barin Smith | | SC03-D00123 Level 1 Common Space Landscape Plan Rev E | 06.02.2025 | Dangar Barin Smith | | SC04-D00123 Level 3 Landscape Plan Rev E | 06.02.2025 | Dangar Barin Smith | | SC05-D00123 Level 5 Landscape Plan Rev E | 06.02.2025 | Dangar Barin Smith | | SC06-D00123 Details Rev E | 06.02.2025 | Dangar Barin Smith | | SC07-D00123 Carlift Planter Detail Rev E | 06.02.2025 | Dangar Barin Smith | | D00 Coversheet, Legend & Drawing Schedule, Rev A | 03.12.2024 | Smart Structures Australia | | D01 Basement 2 Stormwater Drainage Plan, Rev A | 03.12.2024 | Smart Structures Australia | | D02 Basement 1 Stormwater Drainage Plan, Rev A | 03.12.2024 | Smart Structures Australia | | D03 First Floor Stormwater Drainage Plan, Rev A | 03.12.2024 | Smart Structures Australia | | D15 Post-Development Catchment Plan and MUSIC Model Results, Rev A | 03.12.2024 | Smart Structures Australia | | D20 Stormwater Drainage Sections and Details Sheet 1, Rev A | 03.12.2024 | Smart Structures Australia | | D21 Stormwater Drainage Sections and Details Sheet 2, Rev A | 03.12.2024 | Smart Structures Australia | | D22 Stormwater Drainage Sections and Details Sheet 3, Rev A | 03.12.2024 | Smart Structures Australia | | D30 Erosion and Sediment Control Plan and Details, Rev A | 03.12.2024 | Smart Structures Australia |
The applicant filed the amended documentation with the Court on 8 May 2025.
The Court notes that the parties agree that the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the Modification Application in the sum of $5,000 within 28 days of the date of these orders.
The Court orders that:
The appeal is upheld.
Development consent DA88/23, which was originally granted by the Land and Environment Court on 11 April 2024 (see Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173) is modified in the terms at Annexure A.
Development Consent DA88/23 is subject to the consolidated, modified conditions of consent at Annexure B.
Annexure A (322 KB, pdf)
Annexure B (590 KB, pdf)
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Made Property NSW Pty Ltd
North Sydney Council [2025] NSWLEC 1389