Warren Geoffrey Watson v Newcastle City Council

Texts Cited: Newcastle Community Participation Plan 2019
Newcastle Development Control Plan 2012

Category: Principal judgment

Parties: Warren Geoffrey Watson (Applicant)
Newcastle City Council (Respondent)

Representation: Counsel:
M Fraser (Applicant)
T Pham (Solicitor) (Respondent)
Solicitor:
Bilbie Faraday Harrison Solicitors and Conveyancers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/313432

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) against the refusal by the Newcastle City Council (the Council) of development application DA2024/00137 (the DA). The DA sought consent for alterations and additions to an approved but unconstructed dwelling house at 65 Macquarie Street, Merewether, NSW, 2291 (the site).

2. The site is legally identified as Lot 801 in Deposited Plan 1255028.

3. On 30 November 2021 the Council approved DA2020/00948 for alterations and additions to the existing dwelling on the site. The Respondent advises that the current proposal for a rooftop deck cannot be constructed without this approved development first being constructed or being constructed simultaneously. The architectural plans for the DA reference those works as “Approved via DA2020/00948”.

4. The DA as lodged proposed the following:

5. Construction of a partially covered rooftop terrace (reliant on the approved alterations and additions under DA2020/00948 being constructed). The terrace creates a second floor and has a total area of approximately 104.1m², comprising:

(a) 43.6m² covered terrace; (b) 58.8m² uncovered terrace; and (c) 1.7m² external store;

2. Provision of circulation to the rooftop terrace, including an internal landing (approximately 12.4m²), access stairs and a lift; and

3. Provision of a store and sanitary facility, located off the internal landing.

4. The DA was lodged with the Respondent on 29 February 2024. On 17 February 2025, the DA was determined by way of refusal by the Respondent. On 15 August 2025, the Applicant filed Class 1 proceedings with the Court.

5. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 11 September 2025. The Applicant filed its Statement of Facts and Contentions in Reply on 17 December 2025.

6. Four submissions were received in response to the notification of the original DA between 8 March and 22 March 2024 to adjoining and surrounding properties in accordance with City of Newcastle Community Participation Plan 2019.

7. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 February 2026. I presided over the conciliation conference.

8. The on-site view was vacated at the request of the parties, as they had reached a s 34 agreement in principle. However, three submitters subsequently indicated that they wished to be heard and it was arranged for them to make submissions to the Court via AVL at the commencement of proceedings on 17 February 2026.

9. Prior to the conciliation conference, on 16 February 2026 the Applicant filed an amended Clause 4.6 request for variation of the height of buildings standard under cl 4.3 of the Newcastle Local Environmental Plan 2021 (the LEP) (prepared by Tony Moody dated 17 December 2025) with the Court.

10. At the conciliation conference, the parties advised that they had reached a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

11. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties had reached the s 34 agreement on 16 February 2026. This decision involved the Court upholding the appeal and granting development consent to an amended DA, subject to conditions, as agreed by the parties.

12. The parties advise that they agree that all contentions raised in the SOFAC are resolved by the amended DA and conditions of consent.

13. The signed s 34 agreement and Annexure A (Conditions of Consent) were filed with the Court on 16 February 2026. The amended plans were filed with the Court on 17 February 2026. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

14. In particular, the Applicant made changes to the plans submitted with the DA in the amended DA as follows:

15. Provision of survey of “ground-level existing” rather than extrapolation method;

16. Increased setback of 2m from the southern parapet of the terrace facing 67 Macquarie St Merewether;

17. Angled privacy screening (rather than vertical) on southern side of terrace inside the planter box; and

18. Reduced roof/pergola over the terrace on the eastern side of the terrace.

19. 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.

20. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

21. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

19. The parties advise that the DA has been made with the written consent of the landowner who is also the Applicant.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

20. The DA was publicly notified from 8 March 2024 to 22 March 2024 in accordance with the City of Newcastle Community Participation Plan 2019. Four submissions were received during this notification period.

21. Amendments to the proposed development in the amended DA have been made by the Applicant to address a number of the concerns raised in the submissions.

Conditions

22. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Coal Mine Subsidence Compensation Act 2017

23. The parties advise that the site is within a proclaimed Mines Subsidence District under s 22 of the Coal Mines Subsidence Compensation Act 2017 and an application approval has been made and received supporting the proposal. Condition 7 of the Conditions of consent requires consultation with Subsidence Authority NSW and compliance with their guidelines.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. The Applicant does not propose the removal of any vegetation from the site in order to facilitate the development proposed in the amended DA. Consequently, Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 does not apply to the amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. With respect to Ch 2 of the Resilience SEPP, the parties advise that the proposed development is not located within the coastal zone and Resilience SEPP Coastal Management provisions do not apply to the subject site.

26. Section 4.6 of the Resilience SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

27. The parties have advised that:

28. The site has been subdivided and used for the purpose of residential development since its establishment of the surrounding residential estate;

29. Additionally, the site is not listed on Council’s land contamination register;

30. The Respondent accepts that the land is not contaminated and does not require remediation prior to construction of either the dwelling previously approved or the rooftop deck. (Strictly speaking the addition of the rooftop deck does not engage s 4.6 of the Resilience SEPP because it is being added to the approved structure well above land which might require remediation.)

31. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the DA can be approved based on the established residential use of the site and the recent approval of DA2020/00948 for a dwelling house on the site.

State Environmental Planning Policy (Sustainable Buildings) 2022

29. The proposed development falls within the meaning of a BASIX affected building in accordance with Sch 7 of the Environmental Planning and Assessment Regulation 2021 (NSW).

30. The parties advise that BASIX certificate No. A387583_04 prepared by Building Sustainability Assessments dated 16 December 2026 has been provided with the amended plans.

Newcastle Local Environmental Plan 2012

31. The LEP applies to the site and to the proposed development. The site is zoned R2 Low Density Residential zone (R2 zone) pursuant to cl 2.2 of the LEP.

32. Development for a dwelling house is permissible with consent in the R2 zone.

33. The proposed addition of the rooftop deck is both part of and ancillary to the residential dwelling previously approved by the Council under DA2020/00948 and is therefore permissible with development consent within the R2 zone.

34. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

35. The site is subject to a Height of buildings development (HoB) standard pursuant to cl 4.3 of the LEP. The height specified for the subject land on the HoB Map in the LEP is 8.5 m. The parties advise that the subject rooftop deck exceeds this height and at its maximum is measured at 11.770 m.

36. The breach of cl 4.3(2) of the LEP has been resolved between the parties on the basis of:

37. Provision by the Applicant of additional survey information identifying “existing ground level” under the relevant parts of the proposed rooftop deck from the “ground floor existing” comprising an excavated basement. Based on the updated Survey Plan, the proposed maximum building height of the proposed roof structure is 11.770m. This is a breach of the HoB Standard by 3.27m or 38.5%. The Respondent accepts this survey information is being an accurate measurement of the height under the LEP; and

38. The Applicant has submitted to the Respondent an Amended Clause 4.6 Request prepared by Mr Tony Moody. The Respondent accepts that the Amended Clause 4.6 Request meets the jurisdictional requirements of cl 4.6 of the LEP and that compliance with the 8.5 m height restriction is unreasonable and unnecessary in the circumstances.

39. Pursuant to cl 4.6 of the LEP, the variation request prepared by Mr Tony Moody dated 17 December 2025 has been filed with the Court to justify the contravention to the HoB development standard.

40. I am satisfied that the Applicant’s amended cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable.

41. I consider that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed amended development achieves the objectives of the HoB development standard at cl 4.3(1)(a)-(b) of the LEP notwithstanding the non-compliant HoB of the proposed development, for the reasons provided within the Applicant’s written request, which I adopt.

42. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons as stated in the written variation request:

43. The proposed rooftop structure in the amended DA now covers only a small portion of the proposed building footprint and will be viewed as a conservative structure compared to the existing dwellings to the south of the site, reducing the building bulk and any potential overlooking of adjoining properties;

44. Proposed planter beds on the western and southern edges of the rooftop terrace combined with glass balustrades will further reduce the visual impact of the proposed rooftop structure; and

45. The proposed development is compatible with the surrounding streetscape and will preserve solar access and views to and from adjoining properties.

46. Approval of the proposed development will be in the public interest for the reasons provided above (at [40(1)]-[40(3)]), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R2 zoning of the subject site, for the reasons provided within the Applicant’s written request, which I also adopt.

47. The site is subject to cl 4.4 of the LEP in relation to a maximum floor space ratio (FSR). The parties advise that the prescribed FSR in cl 4.4 of the LEP is not exceeded in the proposed development.

48. Clause 5.10 of the LEP relates to Heritage conservation. The parties advise that the proposed development is considered satisfactory as follows:

49. It has been assessed the proposed development will not detrimentally affect the heritage significance of the local heritage item I316 Macquarie Street Reservoir (the heritage item) that is located on the site; and

50. It has been suitably demonstrated by the Applicant that the proposed development will conserve and enhance the setting of the heritage item.

51. Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the site is affected by acid sulfate soils, however, cl 6.1 of the LEP is not engaged as the proposed development is for a rooftop deck.

52. Clause 6.2 of the LEP relates to Earthworks. The parties advise that cl 6.2 of the LEP is not engaged because the erection of the rooftop deck cannot and does not propose any earthworks being constructive upon an otherwise approved dwelling house.

Newcastle Development Control Plan 2012

46. The parties advise that the relevant provisions of Newcastle Development Control Plan 2012 have been addressed with the amended DA reducing the bulk and scale of the roof top works, thereby resolving Contention 2 of the SOFAC.

Conclusion

47. Having considered the advice of the parties provided above at [18]-[46], I am satisfied that:

48. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

49. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

50. approval of the proposed development is in the public interest.

51. Further, 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.

52. 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.

Notes

50. The Court notes:

51. That Newcastle City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA2024/00137 made on 16 February 2026 to rely on the amended plans and documents specified below:

| 51 Plan number | Revision number | Plan title | Drawn by | Date of plan | | DA-002 | F | Site Plan | Shade Architects | 17/11/2025 | | DA-003 | F | Site Coverage | Shade Architects | 17/11/2025 | | DA-100 | F | Garage Floor Plan | Shade Architects | 17/11/2025 | | DA-101 | F | Ground Floor Plan | Shade Architects | 17/11/2025 | | DA-102 | F | First Floor Plan | Shade Architects | 17/11/2025 | | DA-103 | F | Terrace Plan | Shade Architects | 17/11/2025 | | DA-104 | F | Roof Plan | Shade Architects | 17/11/2025 | | DA-300 | F | North-East Elevation | Shade Architects | 17/11/2025 | | DA-301 | F | South-East Elevation | Shade Architects | 17/11/2025 | | DA-302 | F | South-West Elevation | Shade Architects | 17/11/2025 | | DA-303 | F | North-West Elevation | Shade Architects | 17/11/2025 | | DA-400 | F | Section A-A | Shade Architects | 17/11/2025 | | DA-401 | F | Section A-A - Overall | Shade Architects | 17/11/2025 | | DA-402 | F | Section B-B | Shade Architects | 17/11/2025 | | DA-403 | F | Section C-C | Shade Architects | 17/11/2025 |

| Document title | Version / Reference | Prepared by | Date of document | | BASIX Certificate | A387583_04 | Building Sustainability Assessments | 16/12/2025 | | Amended Clause 4.6 Request for Variation of Height of Buildings Standard | - | Tony Moody Planning and Development | 17/12/2025 | | Detail & Extrapolation Survey | 6380 Revision E | Land Development Solutions | 29/10/2025 |

Orders

51. The Court orders that:

52. The appeal is upheld.

53. Development consent is granted to Development Application DA2024/00137 for construction of a partially covered rooftop terrace (reliant upon approved alterations and additions under DA2020/00948 for a dwelling house) at 65 Macquarie Street Merewether, NSW, 2291, legally known as Lot 801 DP 1255028, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (323 KB, pdf)

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