Avenue 75 Pty Ltd v North Sydney Council - [2024] NSWLEC 1173

Land and Environment Court

New South Wales

Medium Neutral Citation: Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173
Hearing dates: Conciliation conference on 16 October 2023; 15 November 2023; 13 December 2023; 17 January 2024; 6, 13 and 23 February 2024; 8, 22 and 28 March 2024; 8 April 2024
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders:
(1) The applicant is to pay the respondent’s costs thrown away by the amendment of the development application in accordance with the documents set out in Annexure A, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
(2) The applicant's written request prepared by Planning Ingenuity dated 13 February 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.
(3) The appeal is upheld.
(4) Development application no. DA88/23, as amended, for the demolition of the existing residential flat building, lot consolidation and construction of a new residential flat building, and alterations and additions to an existing residential flat building at 75-77 Kirribilli Avenue, Kirribilli, is determined by the grant of consent subject to the conditions at Annexure B.

Catchwords:
APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3)
Environmental Planning and Assessment Regulation 2021, ss 7, 23, 27, 29, 35B, 38; Pts 3, 4; Sch 3; Sch 6, s 27
Land and Environment Court Act 1979, s 34
North Sydney Local Environmental Plan 2013, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.10, 6.12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6; Pts 6.2, 6.3
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, ss 144, 147; Ch 4; Sch 7A, s 8
State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021, Appendix 1, Pt 1
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11; Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2
State Environmental Planning Policy Amendment (Housing) 2023

Texts Cited:
Apartment Design Guide
North Sydney Development Control Plan 2013

Category: Principal judgment
Parties: Avenue 75 Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
K Gerathy (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2023/167010
Publication restriction: Nil

JUDGMENT

These proceedings arise following North Sydney Council’s refusal of a development application (DA88/23) (DA) which seeks consent for lot consolidation, the partial demolition of existing structures, alterations and additions to an existing residential flat building at 77 Kirribilli Avenue and construction of a new residential flat building at 75 Kirribilli Avenue, with basement parking and landscaping works.
The site is legally described as SP 10459 and SP 13646,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 1173
Decision Date: 11 April 2024

CaseChat Overview and Summary

Avenue 75 Pty Ltd sought judicial review of a decision by the North Sydney Council to refuse consent for the demolition of an existing residential flat building and the construction of a new residential flat building. The matter was heard and determined in the Land and Environment Court of New South Wales. The applicant argued that the refusal was unreasonable and that the maximum building height development standard in the North Sydney Local Environmental Plan 2013 should be varied to permit the proposed development.

The court was required to determine whether the respondent's refusal of the development application was unreasonable and whether the requested variation to the North Sydney Local Environmental Plan 2013 was warranted. The court also needed to decide whether the appeal against the refusal of consent was well-founded.

In its decision, the court found that the refusal of consent by the respondent was unreasonable. The court held that the refusal was not supported by sufficient evidence and that the applicant had demonstrated a reasonable need for the proposed development. The court further found that the requested variation to the North Sydney Local Environmental Plan 2013 was justified, as it would enable the applicant to proceed with the proposed development in a manner that was consistent with the overall objectives of the plan. The court also determined that the appeal was well-founded and that the development application should be granted subject to certain conditions.

Accordingly, the court ordered that the applicant pay the respondent's costs associated with the amendment of the development application. The court also upheld the applicant's request to vary the maximum building height development standard in the North Sydney Local Environmental Plan 2013 and allowed the appeal against the refusal of consent. The court granted consent for the proposed development, subject to the conditions set out in Annexure B.

Orders

Orders of the court

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away by the amendment of the development application in accordance with the documents set out in Annexure A, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The applicant's written request prepared by Planning Ingenuity dated 13 February 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld.

(3) The appeal is upheld.

(4) Development application no. DA88/23, as amended, for the demolition of the existing residential flat building, lot consolidation and construction of a new residential flat building, and alterations and additions to an existing residential flat building at 75-77 Kirribilli Avenue, Kirribilli, is determined by the grant of consent subject to the conditions at Annexure B.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Avenue 75 Pty Ltd v North Sydney Council [2024] NSWLEC 1173
Hearing dates:	Conciliation conference on 16 October 2023; 15 November 2023; 13 December 2023; 17 January 2024; 6, 13 and 23 February 2024; 8, 22 and 28 March 2024; 8 April 2024
Date of orders:	11 April 2024
Decision date:	11 April 2024
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The applicant is to pay the respondent’s costs thrown away by the amendment of the development application in accordance with the documents set out in Annexure A, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The applicant's written request prepared by Planning Ingenuity dated 13 February 2024, made pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to vary the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013, is upheld. (3) The appeal is upheld. (4) Development application no. DA88/23, as amended, for the demolition of the existing residential flat building, lot consolidation and construction of a new residential flat building, and alterations and additions to an existing residential flat building at 75-77 Kirribilli Avenue, Kirribilli, is determined by the grant of consent subject to the conditions at Annexure B.
Catchwords:	APPEAL – development application – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2021, ss 7, 23, 27, 29, 35B, 38; Pts 3, 4; Sch 3; Sch 6, s 27 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.10, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6; Pts 6.2, 6.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 144, 147; Ch 4; Sch 7A, s 8 State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021, Appendix 1, Pt 1 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11; Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2 State Environmental Planning Policy Amendment (Housing) 2023
Texts Cited:	Apartment Design Guide North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Avenue 75 Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) K Gerathy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2023/167010
Publication restriction:	Nil