Castle Constructions Pty Ltd v North Sydney Council - [2006] NSWLEC 468

Set aside by Appeal: [2007] NSWCA 164

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468

PARTIES:
APPLICANT
Castle Constructions Pty Ltd
RESPONDENT
North Sydney Council

FILE NUMBER(S): 11010 of 2005

CORAM: Talbot J

KEY ISSUES: Appeal :- error in relation to SEPP 1 objection and failure to consider relevant critical matters.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2001
State Environmental Planning Policy 1 - Devlopment Standards
State Envrionmental Planning Policy 65 - Design Quality of Residential Flat Development

CASES CITED: Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Great Wall Property Group Pty Ltd v North Sydney Council [2005] NSWLEC 574;
King v Great Lakes Shire Council (1986) 58 LGRA 366;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Purcell v Electricity Commission of NSW (1985) 60 ALR 652;
RTA v Damjanovic [2006] NSWCA 166;
Weal v Bathurst City Council (2000) 111 LGERA 181 ;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 20/06/2006, 21/06/2006

DATE OF JUDGMENT:
08/03/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr T F Robertson SC
SOLICITORS
Aitken McLachlan Thorpe

RESPONDENT
Mr M G Craig QC
with Ms H P Irish (barrister)
SOLICITORS
Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

3 August 2006

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

1 Talbot J: By letter dated 31 August 2005 the respondent council notified the applicants’ architect that development application No. 269/05 seeking development consent for the demolition of existing buildings and the erection of a 31 storey commercial/residential building at 136-140 Walker Street, North Sydney had been determined by refusal of consent. The applicant appealed to this Court. On 12 January 2006 the Senior Commissioner dismissed the appeal and confirmed that the development application be determined by refusal. The applicant has appealed against the decision of the Senior Commissioner pursuant to s 56A of the Land and Environment Court Act 1979. The amended notice of motion dated 3 May 2006 identifies 14 grounds of appeal in respect of which it is alleged the Senior Commissioner erred in law.

2 Following notification of the development application 75 objections were attracted.

3 The council identified 5 reasons for refusal when determining the development application whereas the statement of issues relied upon at the hearing before the Senior Commissioner contained seven issues of which 4 were pressed as follows:

· The proposal will isolate the site to its north, No. 142 Walker Street;

· The proposal’s height, scale and massing is excessive;

· The proposal breaches the BHP (“Building Height Plane”); and

· The setbacks are inadequate.

The Judgment Below

4 After providing a general description of the locality of the site and its proximity and relationship to existing and proposed developments in the immediate area the Senior Commissioner outlined the proposal and…

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: [2006] NSWLEC 468
Decision Date: 03/08/2006

CaseChat Overview and Summary

In this case, Castle Constructions Pty Ltd sought to appeal the decision of the Senior Commissioner of the Land and Environment Court, who dismissed an appeal against a refusal of development consent by North Sydney Council. The applicant contested the refusal of consent for the demolition of existing buildings and the erection of a 31-storey commercial/residential building. The applicant argued that the Senior Commissioner erred in law by failing to consider relevant critical matters, misinterpreting certain provisions, and making certain findings. The court found that the Senior Commissioner did indeed make errors in law and upheld the appeal. The court identified several errors in the Senior Commissioner's decision, including the failure to consider certain planning provisions, misinterpreting the relationship between different provisions, and not applying the correct legal tests. The court also found that the Senior Commissioner did not give proper, genuine, and realistic consideration to all relevant matters, such as the desired future character of the precinct and the North Sydney Centre (Central Business District) Character Statement. As a result, the court remitted the matter back to a Commissioner for re-assessment, taking into account all relevant matters and applying the correct legal tests. The court also noted that the Senior Commissioner appeared to give his individual preferences priority over the provisions and intent of the planning scheme, but did not believe this was sufficient grounds to disqualify the Senior Commissioner from hearing the matter on remitter. The court left this decision to the discretion of the Chief Judge when re-listing the matter.

Orders