International Development & Construction Pty Ltd v North Sydney Council - [2005] NSWLEC 691

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: International Development & Construction Pty Ltd v North Sydney Council [2005] NSWLEC 691

PARTIES:
APPLICANT
International Development & Construction Pty Ltd

RESPONDENT
North Sydney Council

CASE NUMBER: 10348 of 2005

CATCH WORDS: Development Application

LEGISLATION CITED:
North Sydney Local Environmental Plan 2001
State Environmental Planning Policy No. 1, Development Standards
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development

CORAM: Tuor C

DATES OF HEARING: 07-08/11/2005

DECISION DATE: 14/11/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr C McEwen, SC
Instructed by: Mr N Velcic
Of: Nikola Velcic & Associates

RESPONDENT
Mr A Galasso, barrister
Instructed by: Ms M Tregoning
Of: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
14 November 2005
10348 of 2005 International Development and Construction Pty Ltd v North Sydney Council

JUDGMENT

COMMISSIONER: This is an appeal against the deemed refusal by North Sydney Council (the council) of a development application for an apartment building at 28 East Crescent Street, McMahons Point (the site).

The site

The site has a frontage to Middle Street of 17.59 m and East Crescent Street of 17.98 m. Its northern side boundary has a length of 46.228 m and the southern side boundary is 50.813 m. The site falls approximately 7.5 m from Middle Street to East Crescent Street.
It is developed with a three storey apartment building, with 12 units, above a ground level car park for 10 cars and a raised podium. The existing building is red brick, with a pitched and tiled roof. Vehicle access to the site is off Middle Street.
The adjoining building to the north, 30 East Crescent Street, is a similar residential flat building. Immediately to the south, is 26 East Crescent Street, which is a four storey Edwardian style residential flat building, with a penthouse apartment. This building is identified as a heritage item by the council. Development further to the south consists of a group of smaller residential flat buildings of different periods. The opposite side of East Crescent Street is separated from the site by a split level road and development on the eastern side of the street consists of a mix of large houses and apartment buildings of varying forms. Development on the opposite side of Middle Street consists of predominantly 1 or 2 storey dwellings with frontages to Blues Point Road.

Background

The development application was lodged on 23 December 2004 and was notified to adjoining residents. Twenty-seven objections were received. The applicant lodged an appeal against the deemed refusal of the application on 8 April 2005. Council considered an assessment report on the application on 16 May 2005 and resolved to defend the appeal. Council received amended plans on 27 July 2005, which were renotified to adjoining residents and 35 objections were received. The amended plans are subject of the appeal.

The proposal

The proposal is to demolish the existing apartment building and construct a new apartment building with 11 apartments 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: [2005] NSWLEC 691
Decision Date: 14 November 2005

CaseChat Overview and Summary

The case of International Development & Construction Pty Ltd v North Sydney Council concerns a development application for a new apartment building at 28 East Crescent Street, McMahons Point. The applicant, International Development & Construction Pty Ltd, sought to demolish the existing building and construct a new one with 11 apartments and 3 levels of basement car parking. The North Sydney Council deemed the application refused and the applicant subsequently appealed this decision to the Land and Environment Court of New South Wales. The primary issues in the appeal were whether the height, bulk, scale, and landscaping of the proposal were compatible with the existing and desired future character of the area and whether the proposed development would adversely affect the adjoining heritage item at 26 East Crescent Street.

The court considered expert evidence from both the applicant and the council on the impact of the proposed development on the surrounding area and heritage item. The court found that while some variation to the planning controls was justified, the extent of the variation proposed by the applicant was not. Specifically, the court found that the proposed building height, building height plane, and landscaped area did not meet the objectives of the relevant planning controls and the SEPP 1 objections were not well founded. The court held that the proposal resulted in unacceptable impacts on the adjoining property to the south and would generate more significant view loss and overshadowing than a complying development.

The court ultimately dismissed the appeal and refused the development application. The court found that the proposal, while architecturally an improvement, was larger than the existing building and increased the departure from the planning controls. The extent of the variation to the height, building height plane, and landscape control did not achieve the objectives of these controls and the SEPP 1 objections were not well founded. The court also found that the proposal would adversely affect the adjoining heritage item at 26 East Crescent Street.

Orders