COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the North Sydney Council's determination of Development Application No. DA209/21 seeking development consent for alterations and additions to an existing dual occupancy, specifically in relation to the Applicant's dissatisfaction with certain conditions of consent (the Proposed Development) at 80 Cairo Street, Cammeray legally described as Lot 2 in DP 712758 (the Site).
The Site currently contains a two-storey dual occupancy with a habitable attic/roof space.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 and 26 July 2022. I have presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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 development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP) to vary a development standard relating to maximum building height.
The parties explained how the jurisdictional prerequisites have been satisfied and provided an agreed written jurisdictional statement which I now address.
The Applicant is the registered proprietor of the Site.
The Site is zoned R2 - Low Density Residential under the NSLEP. Development for the purpose of alterations and additions to a dual occupancy (attached) is permitted with consent in the R2 zone.
The Site is not flood affected or subject to acid sulfate soils. The Site is not subject to a maximum floor space ratio (FSR) control.
All of the matters contained in s 4.15 of the EPA Act that are of relevance to the proposed development have been taken into consideration, and the Development Application, as amended, is acceptable subject to conditions.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.
The Site has only previously been used for residential purposes since its original 1889 subdivision and as such is unlikely to contain any contamination. Accordingly, the Respondent is satisfied of the matters set out in cl 4.6 of the SEPP Resilience and Hazards.
I have also read the Statement of Environmental Effects (SEE) prepared by AK Planning filed with the Class 1 Application which confirms that the Site has been historically used for residential purposes. Further, the Heritage Impact Statement prepared by Perumal Murphy Aless Heritage Consultants filed with the Class 1 Application, gives a detailed history of the Site. Accordingly, I am satisfied that cl 4.6 of the SEPP Resilience and Hazards has been complied with.
The Site is identified as falling within the Sydney Harbour Catchment. The Site is not however located within the foreshore and waterway area, nor the wetlands protection area. The Respondent has considered s 10.10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) and is satisfied that the proposal is consistent with the relevant planning principles.
With respect to Ch 2 of the SEPP Biodiversity and Conservation, no bushland areas will be affected by the approved works, as amended by the Conditions of Consent, and the landscaped context of the Site will be enhanced through the addition of new landscaped areas and new trees (Consent Condition AA1 m).
A BASIX Certificate pursuant to the State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 was prepared for the architectural plans approved by the Development Consent and is provided in the subject Class 1 Application. An updated BASIX Certificate will be prepared following the amendments to the architectural plans anticipated by the deferred commencement condition (Consent Condition AA2). Such a condition is permissible in accordance with the decision of Chief Justice Preston in the case of SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66.
[2]
Development standard contravention justified by a cl 4.6 written request
The Site is subject to a maximum height of buildings control of 8.5m pursuant to cl 4.3 of the NSLEP. The existing dwelling has a maximum building height of 11.4m, and the approved works have a maximum building height of 11.2m. The Applicant relies on the cl 4.6 written request prepared by AK Planning and filed with the subject Class 1 Application in support of the variation of the height development standard. An assessment of the cl 4.6 is provided at pages 17-24 of the Respondent's Assessment Report for the Development Application as filed in the Respondent's Bundle of Documents.
I have read the cl 4.6 written request at Tab 4 of the Class 1 Application filed 18 March 2022 and I have considered the Respondent's Assessment Report. The Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.3 of the NSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the NSLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
[3]
The effect of the Proposed Development on the heritage significance of the heritage item
The Site is a Neutral Item within the Plateau Conservation Area under Sch 5 in NSLEP and is within proximity to heritage items. Surrounding development generally comprises single storey and two storey, freestanding Federation, and late Victorian dwellings. The adjoining site to the south at 74-78 Cairo Street, is an eight storey 1968 residential flat building of 31 units known as "Bellevue Towers", which is an uncharacteristic item within the conservation area.
The Respondent has considered the effect of the proposed development on the heritage significance of the heritage item pursuant to cl 5.10(4) of the NSLEP and is satisfied that the proposal does not adversely affect the conservation area or heritage items, subject to the amended Conditions of Consent (Consent Condition AA1).
Clause 6.6 of the NSLEP provides jurisdictional prerequisites regarding dual occupancies located within a heritage conservation area. The Proposed Development complies with cl 6.6(2)(b) of the NSLEP as the building continues to appear as a dwelling house, the two dwellings will continue to be attached by at least 80% of the common floor/ceiling between the ground and lower ground levels, the area of the Site exceeds 450m² and will maintain the overall appearance of the existing building from the public domain and not affect any significant fabric.
With respect to cl 6.10 of the NSLEP, the approved works include earthworks and excavation is proposed for the extension of the existing garage at street level and for new internal access from the garage via a new lift. The depth of excavation is a maximum of 2.8m. The Geotechnical Site Investigation prepared by Crozier dated 31 March 2021 and filed with the Class 1 Application confirms that the works are considered suitable for the Site and may be completed with negligible impact to existing nearby structures within the Site or on neighbouring properties provided the recommendations of the report and any future geotechnical directives are implemented (see: Condition C3-C7 and E7).
The Development Application was notified between 23 July 2021 and 6 August 2021 and again between 29 October 2021 and 12 November 2021 following amendments being made. No submissions were received.
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 LEC Act. I adopt the reasons given by the parties and as set out in this judgment.
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.
[4]
Orders:
The Court orders:
1. The appeal is upheld.
2. The Applicant's written request prepared by AK Planning made pursuant to clause 4.6 of the North Sydney Local Environmental Plan 2013 to vary the height of buildings development standard at clause 4.3 of North Sydney Local Environmental Plan 2013 is upheld.
3. Development consent is granted to Development Application No. DA209/21 for alterations and additions to an existing dual occupancy including a new car space within the garage and a first floor extension on the land at 80 Cairo Street, Cammeray, subject to the conditions of consent annexed hereto and marked 'A'.
[5]
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Decision last updated: 03 August 2022