Pesochinsky v North Sydney Council

Catchwords: DEVELOPMENT APPLICATION — residential apartment building development — dual occupancy dwellings — agreement between the parties — conciliation conference — orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38
North Sydney Local Environmental Plan 2013, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.10, 6.6, 6.9, 6.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.7, 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.12, 2.13, 2.14, 2.15, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category: Principal judgment

Parties: Michael Pesochinsky (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/224151

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), brought by Michael Pesochinsky (the Applicant), against the refusal of Development Application DA343/2022 (the DA) by the Local Planning Panel of North Sydney Council (the Respondent).

2. At the date of its lodgement on 9 November 2022, the DA sought consent for the demolition of a dwelling house, two dual occupancies and a swimming pool, and construction of two new residential apartment buildings and two new dual occupancies, with basement parking accessed by car lifts, associated landscaping and civil works and internal boundary realignment and subdivision at 184b-190 Kurraba Road, Kurraba Point (the site).

3. 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 18 November and 12 December 2024, and 4 February, 30 May, 10 June, 18 June and 24 July 2025. I presided over the conciliation conference.

4. 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.

5. For the purposes of providing additional context to this matter, during one of several adjournments, a third party, resident objector sought to joinder in the matter by way of notice of motion. Justice Pain of the Court heard the notice of motion, granting an adjournment, which allowed this objector’s primary concerns to be considered by the parties in reaching their agreement.

6. 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 land use permissibility, excessive building height, the proposed extent of earthworks and excavation, potential site isolation, issues arising from excessive building bulk, scale, site coverage, and inadequate site setbacks making the proposal incompatible with the local context, inadequate building separation, inadequate landscaped area and unbuilt upon area, privacy impacts and cross viewing particularly arising from proposed rooftop terraces, a failure to achieve adequate design quality, and unacceptable view impacts for neighbouring properties, amongst other contentions.

7. Agreed design amendments have been made to improve the proposed buildings’ relationship to the site and its context. Changes have been made to rationalise site planning within each land use zone, resolving issues of permissibility. Amendments have been made to reduce the overall building height, bulk and scale of the proposal, particularly as it presents to the site’s boundaries. Other issues such as privacy and cross viewing have been resolved, with the proposed roof terraces having been deleted. The extent and character of proposed landscape treatments have improved. Vehicle access arrangements have been clarified and improved. These agreed amendments also mitigate, to some extent, against earlier impacts of building scale, overshadowing and view affectation for a number of nearby neighbours.

8. 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.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

11. The DA was publicly notified in accordance with the Respondent’s Community Participation Plan from 20 January to 10 February 2023. A total of 42 submissions were received by the Respondent raising concerns broadly reflective of the Respondent’s contentions, and including:

12. Excessive built form, bulk and scale.

13. Overlooking and cross viewing impacts, and ineffective privacy mitigation measures.

14. Increased traffic congestion and parking within the surrounding street network, including proposed changes to on-street parking restrictions and queuing space required for the proposed car lifts.

15. View loss impacts to neighbouring properties.

16. Existing cross easements benefitting and burdening a number of neighbouring properties, sought to be extinguished in concert with the redevelopment of the site.

17. Construction phase impacts of noise, dust, vibration and traffic.

18. Overshadowing to neighbouring residential properties.

19. During the DA assessment (and prior to the Respondent’s eventual refusal of the DA on 5 June 2024), the Applicant made a number of design amendments, which were publicly re-notified from 1 September to 22 September 2023. Further written submissions were received by the Respondent at this time.

20. At the commencement of the conciliation conference, at the site on the morning of 18 November 2024, a number of affected local residents addressed the Court to restate their concerns, and the Court visited adjacent properties to directly observe building separation, privacy, overshadowing and view affectation relationships.

21. 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.

22. This further amended DA was informally re-notified to objectors who had addressed the Court and previously made submissions in response to the DA.

23. The Respondent received additional written submissions from objectors, restating many concerns, including:

24. Building bulk and scale.

25. Zoning and land use permissibility.

26. Traffic and access.

27. View affectation.

28. Overshadowing.

29. Loss of privacy and cross viewing.

30. Inconsistency with desired future character.

31. At the resumed conciliation conference on 30 May 2025, six resident objectors again addressed the Court by MS Teams to summarise their ongoing concerns.

32. The parties now agree, and I am satisfied, that the final 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.

33. The parties agree, and I am satisfied, that view affectation has been reduced by the final amended DA to the point of acceptability. I am satisfied this represents an acceptable view sharing outcome.

34. The parties agree, and I am satisfied, that the final 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.

35. The parties agree, and I am satisfied, that the North Sydney Local Environmental Plan 2013 (NSLEP) is the relevant local environmental planning instrument. The site is partly zoned R2 Low Density Residential, and partly R4 High Density Residential. The final amended DA - characterised as two dual occupancies and residential apartment development - is permissible with consent within the R2 and R4 zones respectively.

36. A central contention of land use permissibility has now been resolved by agreement. The final amended DA comprises development in which no portion of the two residential apartment buildings (including planters, gardens, circulation and access, or any other structures or related items) is located within the part of the site zoned R2, since residential apartment development is prohibited in that zone.

37. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the NSLEP, the final amended DA is consistent with the R2 and R4 zone objectives.

38. 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 final amended DA proposes demolition of the existing structures occupying the site.

39. The parties agree, and I am satisfied, that all relevant principal development standards of the NSLEP have been met by the amended DA, in particular cl 4.1 - Minimum subdivision lot size, cl 4.3 - Height of buildings, and cl 4.4 Floor space ratio.

40. 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, nor is it situated within a Heritage Conservation Area (HCA). Nonetheless, the Applicant has provided a Heritage Impact Statement, prepared by Urbis and dated 22 August 2022. The Applicant has also provided a heritage letter. These documents assess the final amended DA against various heritage items in the wider vicinity.

41. The final amended DA is agreed to incorporate materials, colours and finishes which are respectful of nearby heritage items. I am satisfied that the effect of the final amended DA on the heritage significance of North Sydney is consistent with the objectives of cl 5.10.

42. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the NSLEP - Dual occupancies - the proposed dual occupancies within the final amended DA meet the relevant requirements to be connected for at least 80% of the common walls and are located on land at least 450 sqm in area.

43. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the NSLEP - Limited development on foreshore area - a portion of the site is identified within the Foreshore Building Line Map. The final amended DA includes some demolition of structures within the foreshore area, which is consistent with the provisions of cl 6.9. Otherwise, existing structures within the foreshore area (such as seawalls and jetties) are proposed to be retained, and the footprint of proposed residential development is outside of the foreshore area.

44. The parties agree, and I am satisfied, that the final amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.10 of the NSLEP - Earthworks. The Applicant has provided an amended Geotechnical Investigation Report, prepared by Asset Geotechnical Engineering Pty Ltd and dated 6 November 2024. The Applicant also provided a further letter prepared by Asset Geotechnical Engineering Pty Ltd and dated 7 November 2024 dealing with the provisions of cl 6.10. Accordingly, 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.

45. 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.

46. Chapter 2 of SEPP Resilience deals with coastal management. Pursuant to the relevant provisions of ss 2.12, 2.13, 2.14, 2.15 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed in a manner unlikely to cause increased risk of coastal hazards on the site or other land.

47. 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.

48. 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.

49. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the final 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.

50. Chapter 6 of SEPP BC deals with water catchments and is relevant to the final amended DA. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment.

51. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the final 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.

52. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will not create adverse impacts upon aquatic ecology within the catchment.

53. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems.

54. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

55. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

56. The parties agree, and I am satisfied, that the final 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 (NSW) (EPA Reg), a BASIX certificate, No. 1287018M_02, dated 15 July 2025, has been provided with the final amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

57. 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.

58. 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.

59. The Court notes that:

60. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

61. The Applicant has lodged the final amended DA with the Court on 24 July 2025.

Orders

46. The Court orders that:

47. Leave is granted to the Applicant to amend Development Application DA343/2022 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A.

48. 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 in the agreed sum of $30,000 within 35 days of the date of these orders.

49. The appeal is upheld.

50. Consent is granted to Development Application DA343/2022 (as amended) for the demolition of a dwelling house, two dual occupancies and a swimming pool, and construction of two residential apartment buildings and two dual occupancies, with basement parking accessed by car lifts, associated landscaping and civil works and internal boundary realignment and subdivision at 184b-190 Kurraba Road, Kurraba Point, subject to the conditions of consent at Annexure A..

M Pullinger

Acting Commissioner of the Court

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Annexure A (725 KB, pdf)

Architectural Plans Part 1 (26.1 MB, pdf)

Architectural Plans Part 2 (26.0 MB, pdf)

Architectural Plans Part 3 (3.34 MB, pdf)

Amendments

31 July 2026

Catchwords amended.