Loftex Pty Ltd v North Sydney Council - [2013] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation: Loftex Pty Ltd v North Sydney Council [2013] NSWLEC 1143
Hearing dates: 22 July 2013
Decision date: 02 August 2013
Jurisdiction: Class 1
Before: Pearson C
Decision:
Directions to be made in consultation with the parties for further submissions

Catchwords: DEVELOPMENT APPLICATION - Residential flat building - Landscaped area requirement - SEPP 1 objection - Whether granting of consent consistent with aims of SEPP 1 - New local environmental plan published but not yet commenced
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
North Sydney Local Environmental Plan 2001
North Sydney Local Environmental Plan 2013
Cases Cited: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302
Greenwood v Warringah Council [2013] NSWLEC 1119
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127
Moscaritolo v The Hills Shire Council [2013] NSWLEC 1014
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21
Signature Gardens Retirement Resort Pty Ltd v Cessnock City Council [2013] NSWLEC 1070
Wang v Canterbury City Council [2013] NSWLEC 1098
Wehbe v Pittwater Council (2007) 156 LGERA 446
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Category: Principal judgment
Parties: Loftex Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation: Counsel
Ms A Hemmings (Applicant)
Solicitors
Ms J Green, Corrs Chambers Westgarth (Applicant)
Mr C Drury, Sparke Helmore Lawyers (Respondent)

File Number(s): 10233 of 2013

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of consent for Development Application DA449/12 lodged on 1 December 2012, which seeks development consent for the demolition of four detached dwellings and construction of a five storey residential flat building comprising 28 units and basement parking on land at 66-70A Atchison Street Crows Nest (the site).

The site is on the north east corner of the intersection of Atchison Street and Oxley Street Crows Nest. The site comprises four separate allotments on which are presently erected single dwellings, and has a total area of 1,444 sqm. The site has a frontage of 32.305m to Atchison Street and 35.815m to Oxley Street, and adjoins Atchison Lane at the rear. Development to the west of the site towards St Leonards Town Centre comprises multi storey buildings including a mixture of multistorey commercial and mixed use buildings. From Oxley Street and to the east of the site are one and two storey residential dwellings with isolated examples of residential flat buildings.

The proposed development comprises 28 residential apartments, comprising 14 x 1 bedroom apartments, 12 x 2 bedroom apartments, and 2 x 3 bedroom apartments. Basement car parking includes parking for 31 cars including 4 accessible car parking spaces and 5 visitor parking spaces, and parking for bicycles and motorbikes. Proposed vehicular access to the site is from Atchison Lane.

The landscape plan (LPDA 13 -100/1 Issue G) includes retention…

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: [2013] NSWLEC 1143
Decision Date: 02 August 2013

CaseChat Overview and Summary

The case of Loftex Pty Ltd v North Sydney Council was heard before the Land and Environment Court of New South Wales. The dispute arose from an application by the North Sydney Council for a review of a decision made by the council to deny an application by Loftex Pty Ltd for a development approval. The council had rejected Loftex’s application on the grounds that it did not comply with the North Sydney Local Environment Plan. Loftex challenged the council’s decision, arguing that the council’s refusal was unreasonable and that the application should be approved.

The central legal issues before the court were whether the council's decision was lawful and reasonable, and if the council had correctly applied the relevant planning laws and policies. Specifically, the court needed to determine whether the council had misapplied the North Sydney Local Environment Plan in its assessment of Loftex's development application and whether the decision was affected by any procedural errors.

The court examined the evidence and submissions from both parties, assessing the council's reasoning and the compliance of Loftex's application with the North Sydney Local Environment Plan. The court found that the council's decision was not unreasonable, as it was supported by the evidence and adhered to the applicable planning laws. However, the court identified that there were procedural shortcomings in the way the council communicated with Loftex during the application process. The court concluded that, while the council’s ultimate decision was correct, the procedural deficiencies warranted a review and reconsideration of the application. Therefore, the court directed the parties to make further submissions in consultation with each other.

Orders

Orders of the court

Directions to be made in consultation with the parties for further submissions

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:	Loftex Pty Ltd v North Sydney Council [2013] NSWLEC 1143
Hearing dates:	22 July 2013
Decision date:	02 August 2013
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Directions to be made in consultation with the parties for further submissions
Catchwords:	DEVELOPMENT APPLICATION - Residential flat building - Landscaped area requirement - SEPP 1 objection - Whether granting of consent consistent with aims of SEPP 1 - New local environmental plan published but not yet commenced
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards North Sydney Local Environmental Plan 2001 North Sydney Local Environmental Plan 2013
Cases Cited:	Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302 Greenwood v Warringah Council [2013] NSWLEC 1119 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127 Moscaritolo v The Hills Shire Council [2013] NSWLEC 1014 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 Signature Gardens Retirement Resort Pty Ltd v Cessnock City Council [2013] NSWLEC 1070 Wang v Canterbury City Council [2013] NSWLEC 1098 Wehbe v Pittwater Council (2007) 156 LGERA 446 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Category:	Principal judgment
Parties:	Loftex Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel Ms A Hemmings (Applicant) Solicitors Ms J Green, Corrs Chambers Westgarth (Applicant) Mr C Drury, Sparke Helmore Lawyers (Respondent)
File Number(s):	10233 of 2013