Vigor Master Pty Ltd v North Sydney Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: North Sydney Development Control Plan 2013

Category: Principal judgment

Parties: Vigor Master Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
T Robertson SC (Applicant)
S Kondilios (Solicitor) (Respondent)
Solicitors:
Vigor Master Pty Ltd (Applicant)
Hall and Willcox (Respondent)

File Number(s): 2025/113659

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Vigor Master Pty Ltd (the Applicant) against the refusal of their development application DA177/2024. The development application, as amended, seeks consent for alterations and additions and change of use from a dual occupancy to a detached dwelling, including internal and external reconfiguration, installation of a lift, and associated site works. The development is proposed at 26 Milson Road Cremorne Point (Lot 1 DP 723861).

2. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 July 2025. At the conciliation conference the parties reached an agreement based on an amended development application. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties agreed resolution: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]. I form this state of satisfaction on the basis that:

4. The application has been made by Vigor Master Pty Ltd, with the consent of the owner of the Site to which the application relates, Linksquare Enterprises Pty Ltd, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified publicly from 13 to 27 September 2024. One objection was received in relation to the development application. Between 9 and 21 January 2025, the amended plans were notified, and two (2) submissions were received. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential purposes and has no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). I find that s 4.6(1) of SEPP RH is satisfied.

7. Pursuant to Ch 2 of SEPP RH the site is mapped as being within the ‘Coastal Environment Area’, the ‘Coastal Use Area’. The site is also mapped as a Coastal Wetland. The effect of the exclusion of land within the Foreshores and Waterways Area at ss 2.10(3) and 2.11(3) of SEPP RH is that the remaining parts of ss 2.10 and 2.11 of SEPP RH do not apply to the development application.

8. The amended development application provides an updated BASIX Certificate as required pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP BASIX) requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

9. Part 6.2 ‘Development in regulated catchments’ of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural stormwater plans and statement of environmental effects, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment.

10. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.

11. Pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013) the site is zoned R2 Low Density Residential. Dwelling houses are permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone which are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• 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.

• To ensure that a high level of residential amenity is achieved and maintained.

9. Pursuant to cl 4.3 height of buildings the maximum height standard for the site is 8.5m. The existing building exceeds this height standard. The development application is accompanied by a written request to vary the height standard. I have read the written request prepared by Planning Ingenuity Pty Ltd, dated 2 July 2025 and in accordance with cl 4.6 of LEP 2013, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2013). I find that the objectives of the Height standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. I note that the exceedance of the maximum height standard arises from the replacement of roof tiles for aesthetic and heritage reasons with slate tiles and a link structure enclosing a lift and stairwell to enable circulation between the residential elements of the garage with the main building. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2015). In particular, I find that the reasons articulated in written request in relation to the positive heritage benefits arising from the works and the specific character of existing buildings exceeding the height standard are sufficient grounds. (c) The states of satisfaction required by cl 4.6 of LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

10. North Sydney Development Control Plan 2013 (DCP 2013) applies - to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

11. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that:

7. North Sydney Council, as the relevant consent authority, approves under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application no. DA177/2024, in accordance with the following documents (Amended Application):

| Plans | | Plan No. | Rev/Date: | Description | Prepared by | | DA-A-010 | 01/07/2025 | Site Plan | Smith & Tzannes | | DA-A-020 | 02/12/2024 | Existing GA/Demolition – L0 | Smith & Tzannes | | DA-A-021 | 02/12/2024 | Existing GA/Demolition – L1 | Smith & Tzannes | | DA-A-022 | 02/12/2024 | Existing GA/Demolition – L2 | Smith & Tzannes | | DA-A-023 | 02/12/2024 | Existing GA/Demolition – L3 | Smith & Tzannes | | DA-A-024 | 02/12/2024 | Existing GA/Demolition – Roof | Smith & Tzannes | | DA-A-0100 | 01/07/2025 | Proposed GA – L0 | Smith & Tzannes | | DA-A-0101 | 01/07/2025 | Proposed GA – L1 | Smith & Tzannes | | DA-A-0102 | 01/07/2025 | Proposed GA – L2 | Smith & Tzannes | | DA-A-0103 | 01/07/2025 | Proposed GA – L3 | Smith & Tzannes | | DA-A-0104 | 01/07/2025 | Proposed GA – Roof | Smith & Tzannes | | DA-A-0200 | 01/07/2025 | Section A | Smith & Tzannes | | DA-A-0201 | 01/07/2025 | North Western Elevation | Smith & Tzannes | | DA-A-0202 | 01/07/2025 | South Eastern Elevation | Smith & Tzannes | | DA-A-0203 | 01/07/2025 | South Western Elevation | Smith & Tzannes | | DA-A-0204 | 01/07/2025 | North Eastern Elevation | Smith & Tzannes | | DA-A-0205 | 01/07/2025 | Section B & C | Smith & Tzannes | | DA-A-908 | 01/07/2025 | Materials and Finishes | Smith & Tzannes | | L/01A | 18/06/2025 | Proposed Landscape Plan – L0 | A Total Concept | | L/02A | 18/06/2025 | Proposed Landscape Plan – L1 | A Total Concept | | L/03 | 17/06/2025 | Proposed Landscape Plan – L2 | A Total Concept | | L/04 | 03/05/2024 | Landscape Details | A Total Concept | | L/05 | 03/05/2024 | Landscape Specifications | A Total Concept | | Reports | | Description | Date | Prepared by | | Clause 4.6 Variation Statement | 2 July 2025 | Planning Ingenuity |

2. The Applicant's written request pursuant cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the height of buildings standard in cl 4.3 of LEP 2013 is upheld.

Orders

7. The Court orders that:

8. The appeal is upheld.

9. Development consent is granted to Development Application No. DA177/2024, as amended, for alterations and additions and for the change of use from a dual occupancy to a detached dwelling, including internal and external reconfiguration, installation of a lift, and associated site works at 26 Milson Road, Cremorne Point, subject to the conditions of consent set out in Annexure A.

………………………….

D Dickson

Commissioner of the Court

Annexure A (484 KB, pdf)

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