Castle Constructions v North Sydney Council - [2006] NSWLEC 5

Land and Environment Court

of New South Wales

CITATION: Castle Constructions v North Sydney Council [2006] NSWLEC 5

PARTIES:
Applicant:
Castle Constructions Pty Ltd
Respondent:
North Sydney Council

FILE NUMBER(S): 11010 of 2005

CORAM: Roseth SC

KEY ISSUES: Development Application - Development Control Plan :-

DATES OF HEARING: 15/12/2005. 16/12/2005 and 21/12/2005

DATE OF JUDGMENT:
01/12/2006

LEGAL REPRESENTATIVES: Applicant:
Mr C McEwen, SC and Ms S Duggan, barrister instructed by Mr M Dockrill, solicitor of Day Dockrill
Ms H Irish, barrister instructed by Ms L Leece of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

12 January 2006

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

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a 31-storey commercial/residential building consisting of basement parking, a podium of five commercial floors and a tower of 26 residential floors.

2 The site is on the western side of Walker Street. Its area is 1,176m2. To the west is 3-11 Ward Street, a site for which the Court refused an application on 13 October 2005 (Great Wall Property Group v North Sydney Council (No 2) [2005] NSWLEC 574), and for which there is new application before the council. On the eastern side of the street, opposite the site, are several low-rise blocks of flats. To the south of those buildings is the Century Plaza building, a 20-storey apartment building. To the south is an eleven-storey office building at 76 Berry Street (the People Telecom building) with a top RL of 110. To the north is 142 Walker Street, on which stands a two-storey apartment building in a state of dilapidation. To the north of No 142 are four heritage-listed two-storey apartment buildings, 144-150 Walker Street. A development application for a proposal on those four sites has been lodged with the council and is on appeal before the Court.

3 The applicant proposes to demolish the existing buildings on the site and to erect a 31-storey commercial/residential building consisting of basement parking, a podium of five commercial floors and a tower of 26 residential floors. The RL of the roof is 162.50m. The tower element is set back 6.5m from the western boundary, 3m from the southern boundary, and 3m from the eastern boundary. The setback from the Walker Street boundary varies, with an average of about 5m.

4 The applicant lodged the development application in June 2005. Following notification, the council received 75 objections. The council’s Urban Design Advisory Panel considered the proposal in July 2005. The Panel noted that the proposal does no adequately address SEPP 1 on variation of controls in terms of the breach of height controls and in particular the BHP control. The Panel did not support it for the following reasons:

The proposal is totally out of context and fails to…

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 5
Decision Date: 01/12/2006

CaseChat Overview and Summary

In Castle Constructions Pty Ltd v North Sydney Council, the Land and Environment Court of New South Wales addressed an appeal against the North Sydney Council's refusal to grant a development application for the demolition of existing buildings on a site and the erection of a 31-storey commercial/residential building. The applicant proposed a building with basement parking, a five-storey podium of commercial floors, and a 26-storey residential tower, which was deemed excessively high and out of scale with the surrounding area. The court considered various objections and planning controls, including the Local Environmental Plan 2001, State Environmental Planning Policy 1, and the Design Quality of Residential Flat Development Policy. The key issues focused on the proposal's height, scale, massing, and compliance with the Building Height Provision and setbacks.

The court found that the proposal was significantly out of scale with the surrounding area, leading to unacceptable overshadowing and a loss of character in the neighbourhood. The proposal also breached the Building Height Provision by exceeding the permitted height for the site. Although the setbacks from the southern and western boundaries were deemed adequate, the court found that the northern setback should be increased to 6.5m to ensure adequate separation from any future development on the adjoining site. Ultimately, the court concluded that the proposal did not align with the planning objectives and controls, leading to the dismissal of the appeal. The development application was refused, and the exhibits were returned to the applicant.

Orders