Castle Constructions Pty Ltd v North Sydney Council - [2008] NSWLEC 1168

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168

PARTIES:
APPLICANT
Castle Constructions Pty Ltd
RESPODNENT
North Sydney Council

FILE NUMBER(S): 11010 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- demolition of existing buildings multi-storey commercial/residential building,

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164
Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137
Nuts 'n Berries v North Sydney Council [2006] NSWLEC 516

DATES OF HEARING: 29 and 30 November, 2 December 2007 and 16, 17, 18, 23 and 25 January and 1 May 2008.

DATE OF JUDGMENT:
7 May 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr. T. Robertson, SC
Instructed by Ms Read
of McLauchlan Thorpe Partners.
RESPONDENT
Miss H. Irish
Instructed by Mr. M. Jaku
of Mallesons Stephen Jaques.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 May 2008

11010 of 2005 Castle Constructions Pty Ltd v North Sydney Council
JUDGMENT

Introduction

1 This is the second appeal/merits review of the respondent council's refusal of a development application for a mixed-use development at 136-140 Walker Street, North Sydney. The original appeal/merits review by Roseth SC in January 2006, refusing the application, was subsequently set aside by Talbot J (Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468).

2 The proposed development comprises the demolition of two residential flat buildings and the erection of a 36 storey mixed use development containing 104 dwellings above a commercial podium of three and five levels There are to be five basement levels with parking for 110 vehicles. The building is to be about 100m in height with the topmost point of the tower rising to RL162.50. The tower is set back over 7m from Walker Street and 3m from the northern and southern boundaries of the site

3 Situated on the west side of Walker Street, the site has a frontage of 28.84m, a depth of about 40m, an area of 1,176 .5 m2 and a cross fall of about 7 m. In addition to its Walker Street frontage it has, at the rear, a 1.5 m wide access-way extending to Hartnett Street. Surrounding the site is a variety of built forms and land uses including: multi-storey residential flat and commercial buildings, and two and three-storey residential flat buildings.

Planning controls

4 Under the North Sydney Local Environmental Plan 2001 the site is zoned Mixed Use and in this zone the proposed development is permissible with development consent. It is to be noted that cl 30 of the LEP does not have any application for the determination of this development application (see Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164). Under North Sydney Development Control Plan 2002 the site is included in the North Sydney Centre Planning Area.

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: [2008] NSWLEC 1168
Decision Date: 7 May 2008

CaseChat Overview and Summary

In Castle Constructions Pty Ltd v North Sydney Council, the applicant sought approval for a mixed-use development at 136-140 Walker Street, North Sydney. The proposed development included the demolition of two residential flat buildings and the construction of a 36-storey mixed-use building with 104 dwellings above a commercial podium. The site is located in the North Sydney Centre Planning Area, which is zoned Mixed Use and permits development with consent. The applicant's proposal was subject to various planning controls, including those in the North Sydney Local Environmental Plan 2001, the North Sydney Development Control Plan 2002, and the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development. The respondent, North Sydney Council, opposed the application on several grounds, including excessive height and scale, inadequate setbacks, and potential overshadowing of adjacent properties.

The court considered the respondent's contentions, which included the argument that the proposed building was excessive in height and scale, did not provide an adequate setback from Walker Street, and would have an unacceptable impact on heritage items and overshadow the Century Plaza building. The court also considered the draft North Sydney Local Environmental Plan - Amendment No 28, which proposed a maximum building height of RL 103 for the site. However, the court found that the draft LEP was invalid and of no effect, and therefore, could not be considered as a public interest factor.

In relation to the height and scale of the proposed building, the court found that while the building complied with the height control in the LEP, it did not meet the requirements of the North Sydney Development Control Plan, which provided for a stepping down in building heights towards the boundaries of the North Sydney Centre. The court concluded that the proposed building was too tall and would have an unacceptable visual dominance.

The court also found that the setbacks of the proposed building from Walker Street and its relationship with the podium were satisfactory. However, the court accepted that an increased setback at the north-east corner of the building, including the removal of the heavy frame around the balcony, would be beneficial.

Regarding the impact on heritage items, the court found that while the scale of the proposed building was significantly greater than that of the heritage items, there would be no adverse impact on the heritage items sufficient to warrant refusal of the application. The court took into account the various elements that contribute to the existing and future Walker Street streetscape, as well as the various planning controls that direct building height.

Finally, the court found that the overshadowing of the Century Plaza building would reduce the amenity of the affected Type D dwellings, in breach of the relevant planning controls. The court concluded that the proposed development, in its presently proposed form, should be refused.

The court dismissed the appeal, but the applicant was given the opportunity to consider its position before final orders were made. The court noted that a further lowering of the building could possibly be achieved by removing additional floors from the middle of the building, but a substantial reduction in height was not feasible in the context of this development application.

Orders