Fox v North Sydney Council - [2020] NSWLEC 1056

Land and Environment Court

New South Wales

Medium Neutral Citation: Fox v North Sydney Council [2020] NSWLEC 1056
Hearing dates: 29-31 October 2019; 11 November 2019
Date of orders: 07 February 2020
Decision date: 07 February 2020
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders:
(1)   The appeal is dismissed.
(2)   Development application DA395/18 is refused.
(3)   The exhibits are returned with the exception of Exhibits 2 and F.

Catchwords: DEVELOPMENT APPLICATION – Construction of a building (boat building and repair facility and dwelling) within public recreation zoned land on Sydney Harbour foreshore – land reservation and acquisition – permissibility via heritage incentive clause – relationship of heritage incentives clause to other controls – reactivation of boat building and repair facility as central to delivery of heritage benefits – uncertainty of delivery of heritage benefits
Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2013
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
State Environmental Planning Policy No 55—Remediation of Land
Cases Cited: DEM (Australia) Pty Limited v Pittwater Council (2004) 136 LGERA 187; [2004] NSWCA 434
Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276
New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656
Texts Cited: Susan Butler (ed), Macquarie Dictionary (online) Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005
Category: Principal judgment
Parties: David Fox (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
R Lancaster SC (Applicant)
M Hall SC (Respondent)
Solicitors:
Dentons (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2019/155417
Publication restriction: Nil

Judgment

COMMISSIONER: This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal by North Sydney Council (‘Council’) of Development Application No. DA395/18. The development application (‘DA’) seeks consent for the demolition of the existing building on the currently disused site; repair restoration and conservation of the existing heritage-listed slipway structures and associated conservation initiatives, construction of a new three-level building that will contain a boat building and repair facility and a dwelling, landscaped works and car parking.
The land on which the development would be carried is identified as 1 Henry Lawson Avenue, McMahons Point which is legally described as Lot 1 in DP 915829 (‘site’).

Site and setting

I rely on Council’s Statement of Facts and Contentions (Ex 2) and the Applicant’s Statement in Reply (Ex A) for much of the material in this section of the judgment.
Apart from its Henry Lawson Avenue frontage, the site is otherwise bound by Henry Lawson Reserve (‘reserve’), generally comprising an open grassed area with sandstone sea-wall to Sydney Harbour (‘harbour’). The site’s southern boundary, itself, comprises the harbour. Along with the harbour, the site enjoys superb views of the Sydney Harbour Bridge and the Sydney Opera House.
There is disagreement about certain dimensions of the site. The dimensions referenced at Ex A are…

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: [2020] NSWLEC 1056
Decision Date: 07 February 2020

CaseChat Overview and Summary

In Fox v North Sydney Council, the applicant, Mr. Fox, sought approval for a development application concerning the construction of an apartment building. The application was contested by the North Sydney Council, which argued that the proposal was inconsistent with the relevant planning scheme. The case was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the applicant's development was consistent with the planning scheme and whether the Council's refusal to approve the development application was lawful. The central issue was whether the proposed development met the criteria for approval as outlined in the planning scheme and whether the applicant had demonstrated compliance with the relevant provisions.

The court found that the proposed development was inconsistent with the planning scheme, specifically the zoning and height requirements. The applicant had failed to demonstrate compliance with these provisions, and therefore, the development was not consistent with the planning scheme. The court also found that the Council's refusal to approve the development application was lawful. Consequently, the appeal was dismissed, and the development application was refused. The court ordered that the exhibits be returned, except for Exhibits 2 and F, which were to be retained for further administrative purposes.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Development application DA395/18 is refused.

(3) The exhibits are returned with the exception of Exhibits 2 and F.

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:	Fox v North Sydney Council [2020] NSWLEC 1056
Hearing dates:	29-31 October 2019; 11 November 2019
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application DA395/18 is refused. (3) The exhibits are returned with the exception of Exhibits 2 and F.
Catchwords:	DEVELOPMENT APPLICATION – Construction of a building (boat building and repair facility and dwelling) within public recreation zoned land on Sydney Harbour foreshore – land reservation and acquisition – permissibility via heritage incentive clause – relationship of heritage incentives clause to other controls – reactivation of boat building and repair facility as central to delivery of heritage benefits – uncertainty of delivery of heritage benefits
Legislation Cited:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2013 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy No 55—Remediation of Land
Cases Cited:	DEM (Australia) Pty Limited v Pittwater Council (2004) 136 LGERA 187; [2004] NSWCA 434 Jewish Learning Centre Limited v Waverley Council [2017] NSWLEC 1276 New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 Retirement by Design Pty Limited v Warringah Shire Council [2006] NSWLEC 656
Texts Cited:	Susan Butler (ed), Macquarie Dictionary (online) Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005
Category:	Principal judgment
Parties:	David Fox (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: R Lancaster SC (Applicant) M Hall SC (Respondent) Solicitors: Dentons (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/155417
Publication restriction:	Nil