Etherington v North Sydney Council [2021] NSWLEC 1324

20 JUL 2021


The Land and Environment Court has recently refused a development application for the demolition of an existing dwelling and garage and the construction of a new dwelling and double garage on the land at 58 Cowdroy Avenue, Cammeray.

The site of the proposed demolition and subsequent development is located at the northern, lower side of Cowdroy Avenue. Sydney Harbour foreshores create the northern boundary. The Northern Sydney Council was represented by Adam Seton in the proceedings. The Council recognized the impacts of the development on shared views of the scenic waters, and contended that the development would result in unreasonable view loss for the neighouring properties – particularly the residential premises to the immediate west. . The site has a northerly aspect view of Long Bay, Tunks Park and the Northbridge Golf Course.

The site is located in E4 Environment Living Zone under the North Sydney Local Environment Plan 2013 (“NSLEP”). The objectives under this zone include:

  • “To provide for low-impact residential development in areas with special, ecological, scientific or aesthetic values.
  • To ensure that residential development does not have an adverse effect on those values.
  • To ensure that a high level of residential amenity is achieved and maintained.


Further, the site is partially zoned (on the northern part) as W6: Scenic Waters: Active Use. The surrounding locality is predominately residential with various heights and styles among the dwellings.

The site is comprised of an irregular shaped 556m2 lot, with North and South Boundaries of approximately 13m and side boundaries of 45m. Adjacent to the site in the East is a detached 4 storey dwelling house plus carpark on the land at 2 Folly Point and in the West a 3 storey detached dwelling on the land at 56 Cowdroy Ave.

At the time of the hearing, the remaining issues the Council related to: height; built form and character; adverse impact on existing views and view sharing; excessive excavation and filling; overshadowing of neighbouring properties; insufficient and inadequate information (in part); overdevelopment; and public interest remain in contention. All landscape contentions had been resolved. The court summarized the most prominent issues as follows:

  • 1. Excessive height – essentially the proposed development comprises of a 3 storey dwelling, with a fourth storey containing lift and stair access and a garage that is level with Cowdroy Avenue. Overall, the proposed dwelling exceeds the 8.5m height limit prescribed by cl 4.3(2) of NSLEP, with the breaches occurring at the uppermost habitable level on the third storey and at the fourth storey with the garage in the northern portion.
  • 2. Consequential impacts on views and amenity – unreasonable view loss and overshadowing on the neighbouring properties will result from the built form and height exceedance. The principle location of the view loss and overshadowing preventing solar access is at the west adjacent dwelling on the land at 56 Cowdroy Avenue.

Picture 1: View Loss Diagram

Pursuant to cl 4.6 of the NSLEP, the Applicant provided a written request to vary the height control in an attempt to establish that compliance with the height control was unreasonable or unnecessary in the circumstances of this development, and that there were sufficient environmental planning grounds to justify exceeding the height limit.

In relation to the written request for variation of the height limit, Acting Commissioner Washing, who heard and determined the Appeal, examined the submissions of both parties. Council submitted that the Applicant’s written request was insufficient. Mr Seton for Council established successfully in his cross examination of the Applicant’s planning expert, Mr. Boston, that the numerical request was in fact incorrect in two instances, in that it sought an incorrect variation to the height control. The Acting Commissioner explored in her examination that there are two respects in which a written request needs to be ‘sufficient’, citing Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256:

  • “The environmental planning grounds relied on in the written request under cl 4.6 must be “sufficient”. There are two respects in which the written request needs to be “sufficient”. First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].”

The Acting Commissioner indicated “Regardless of verbal submissions advanced by either party, it is the cl 4.6 written request from the Applicant that must satisfy the requirements of subcll 4.6(3) and (4) of NSLEP. In exercising the functions of the consent authority in these proceedings, I must be satisfied that the cl 4.6 written request adequately establishes, amongst other things, sufficient environmental planning grounds to justify the contravention of the development standard.”

The Acting Commissioner was not convinced by the Applicant’s claim that achieving strict compliance with the height limit would prevent achieving ‘a reasonable level of floor space’ or impact the orderly or economic development of the site in a negative way. In this regard, although the second storey having a floor-to-ceiling height of 3.2m, grading upwards to approximately 5.2m would give the occupants a great level of amenity, there is no evidence suggesting that a reduction in ceiling height and compliance with the building height limit would restrict that amenity nor result in unreasonable level of floor space. Thus, the Acting Commissioner found this submission insufficient to justify the height contravention.

Acting Commissioner Washington also found that the steep topography is not relevant on the basis that the ground floor is not the cause of the height exceedance, but instead the configuration of the second storey.

Further, Acting Commissioner Washington rejected the Applicant’s submissions regarding environmental planning grounds that do not relate to the contravention specifically but to the development as a whole, following Initial Action. Therefore, the fact that the height, bulk and scale of the development are consistent with the both existing and likely future character of the area as well the development achieving the objects of s 1.3 of the EP&A Act are not relevant to the justification of the height contravention.
Subsequently, the Acting Commissioner concluded:

  • “I am not satisfied that any of the environmental planning grounds advanced in the cl 4.6 written request are sufficient to justify the contravention of the height development standard.
  • Given that the development application does not meet this jurisdictional test, there is no utility in considering the further contentions raised in these proceedings.”

The result was a win for the Council in relation to a prominent waterfront site.


The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.


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