Background
Anna Berry applied for approval to build a single garage with a habitable studio above it at 79 Hayberry Street, Crows Nest. North Sydney Council refused DA444/2025 on 19 February 2026. The proposal was publicly notified, attracting five objections concerning matters including bulk, heritage character, amenity, privacy, overshadowing and alleged non-compliance.
Berry commenced a Class 1 appeal against the refusal. After mediation, the parties agreed on an amended proposal and requested a conciliation conference. The amendments removed the lane-facing dormer, enlarged the inward-facing dormer, reduced habitable space and changed the roof pitch.
The Court’s Holding
Commissioner Targett upheld the appeal and granted development consent for the amended application, subject to the agreed conditions in Annexure A. The Court held that the parties’ agreed outcome was one it could make in the proper exercise of its functions and was therefore required to give effect to it under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The Court accepted that the land was suitable, the development was permissible with consent in the R2 Low Density Residential zone, and the amended design complied with the 8.5-metre height standard. It also accepted that the proposal would not have an unacceptable effect on the Holtermann Estate Heritage Conservation Area and that relevant environmental, catchment and public-interest considerations had been addressed. The Commissioner expressly did not conduct a merits assessment of the matters previously disputed.
Key Takeaways
- A Class 1 planning appeal may be resolved through a conciliation agreement where the agreed result is within the Court’s power.
- Amendments to built form and habitable space supported approval of a garage-and-studio proposal in a heritage conservation area.
- In approving a conciliated outcome, the Court need not independently determine the merits issues originally in dispute.
Why It Matters
The decision illustrates the practical effect of the Land and Environment Court’s conciliation procedure: once the parties reach an agreed planning outcome that the Court can lawfully make, the Court must dispose of the proceedings accordingly.
It also shows how targeted design changes can address planning and heritage concerns while preserving a development proposal. The approval was for the amended plans, not the proposal as originally refused by the Council.