Luxcon Developments Pty Ltd v North Sydney Council - [2011] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation: Luxcon Developments Pty Ltd v North Sydney Council [2011] NSWLEC 1176
Hearing dates: 22 June 2011
Decision date: 22 June 2011
Jurisdiction: Class 1
Before: Smithson AC
Decision:
1.The appeal is upheld.
2.The application under s96 of the Environmental Planning and Assessment Act for modifications to Development Consent to extend an external terrace and modify the materials of the balustrade and add a planter box is determined by the granting of consent.
3.The development conditions in Exhibits 4 and E apply but with the modification to Conditions A (ii) and 17 to allow transportable pot plants and pots not exceeding 600 mm in total height on the extended terrace, and to Condition 18 to refer to 10pm rather than 9pm.
4.The exhibits are returned to the parties with the exception of Exhibits 1, 2, 4, C, D and E.

Catchwords: DEVELOPMENT MODIFICATION - terrace extension - view sharing - glass balustrading impact on views
Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002
Protection of the Environment (Operations) Act 1997
Cases Cited: Finlay v Manly Council [2006] NSWLEC 224
Super Studio v Waverley Council [2004] NSWLEC 91
Tenacity Consulting v Warringah [2004] NSWLEC 140
Category: Principal judgment
Parties:
Luxcon Developments (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel
Mr S Brockwell (Applicant)
Solicitors
Mr J Denes, Denes Ebner (Applicant)
Ms J Hewitt, HWL Ebsworth (Respondent)

File Number(s): 10307 of 2011

Extempore Judgment

This is an appeal against the refusal by North Sydney Council (the Council) to modify Development Consent No 520/08 under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) for a residential apartment development substantially complete at 43 Kurraba Road, Neutral Bay. The proposal is to modify the penthouse of the apartment building by increasing the size of its roof terrace and modifying the nature of the terrace's balustrading.

The grounds raised by the Council are that: the proposal would double the approved area of the roof terrace; the terrace would not comply with the provisions of Council's Development Control Plan for roof terraces; and the proposal would create adverse impacts on the adjoining residential dwellings, in particular in terms of acoustic and visual privacy. Whilst not explicit in the Council's decision, the main issue arising from all three grounds for refusal is the impact on views, from two apartments opposite the site in Kurraba Road in particular.

The subject site, Lot 1 DP 83937 is located on the northeastern corner of Kurraba Road and Manns Avenue. The site is 1201 sq m in area and irregular in shape with a 50.8 m frontage to Kurraba Road and a 51 m frontage to Manns Avenue. The site falls approximately 5.7 m from Kurraba Road to its lowest point on Manns Avenue.

The site was formerly used for a service station, which has been remediated and is being redeveloped for a part four, part five storey…

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.

Keep reading for free

Create a free CaseChat account to read Luxcon Developments Pty Ltd v North Sydney Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWLEC 1176
Decision Date: 22 June 2011

CaseChat Overview and Summary

In the case of Luxcon Developments Pty Ltd v North Sydney Council, the applicant sought modifications to a development consent granted by the respondent council for a development located in North Sydney. The modifications included extending an external terrace, changing the materials of the balustrade, and adding a planter box. The application was initially denied by the council, leading the applicant to appeal to the Land and Environment Court. The appeal was subsequently heard and determined by the court.

The primary legal issue before the court was whether the proposed modifications to the development consent were consistent with the relevant planning and environmental legislation. The applicant argued that the modifications were minor and would not significantly impact the character of the area or contravene any planning controls. The council, on the other hand, contended that the modifications would result in an unacceptable change to the approved development and could potentially harm the surrounding environment.

The court considered the statutory framework governing development consent and the principles of planning law in Australia. It found that the proposed modifications were relatively minor and would not substantially alter the approved development. The court also considered the impact of the modifications on the surrounding environment and concluded that any potential harm could be mitigated through appropriate conditions. Accordingly, the court held that the modifications were consistent with the relevant planning and environmental legislation, and the appeal was upheld. The court granted the application for modifications to the development consent, subject to certain conditions, and ordered that the exhibits be returned to the parties, except for those specifically mentioned in the orders.

Orders

Orders of the court

1.The appeal is upheld.

2.The application under s96 of the Environmental Planning and Assessment Act for modifications to Development Consent to extend an external terrace and modify the materials of the balustrade and add a planter box is determined by the granting of consent.

3.The development conditions in Exhibits 4 and E apply but with the modification to Conditions A (ii) and 17 to allow transportable pot plants and pots not exceeding 600 mm in total height on the extended terrace, and to Condition 18 to refer to 10pm rather than 9pm.

4.The exhibits are returned to the parties with the exception of Exhibits 1, 2, 4, C, D and E.

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:	Luxcon Developments Pty Ltd v North Sydney Council [2011] NSWLEC 1176
Hearing dates:	22 June 2011
Decision date:	22 June 2011
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1.The appeal is upheld. 2.The application under s96 of the Environmental Planning and Assessment Act for modifications to Development Consent to extend an external terrace and modify the materials of the balustrade and add a planter box is determined by the granting of consent. 3.The development conditions in Exhibits 4 and E apply but with the modification to Conditions A (ii) and 17 to allow transportable pot plants and pots not exceeding 600 mm in total height on the extended terrace, and to Condition 18 to refer to 10pm rather than 9pm. 4.The exhibits are returned to the parties with the exception of Exhibits 1, 2, 4, C, D and E.
Catchwords:	DEVELOPMENT MODIFICATION - terrace extension - view sharing - glass balustrading impact on views
Legislation Cited:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 Protection of the Environment (Operations) Act 1997
Cases Cited:	Finlay v Manly Council [2006] NSWLEC 224 Super Studio v Waverley Council [2004] NSWLEC 91 Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Luxcon Developments (Applicant) North Sydney Council (Respondent)
Representation:	Counsel Mr S Brockwell (Applicant) Solicitors Mr J Denes, Denes Ebner (Applicant) Ms J Hewitt, HWL Ebsworth (Respondent)
File Number(s):	10307 of 2011