McCusker v North Sydney Council - [2021] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation: McCusker v North Sydney Council [2021] NSWLEC 1310
Hearing dates: 20-21 April 2021, written submissions 5, 14 and 18 May 2021
Date of orders: 11 June 2021
Decision date: 11 June 2021
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application No DA 37/2019 for subdivision of Lot 1 DP 79142 at 66 Shellcove Road, Neutral Bay is refused.
(3) The exhibits are returned with the exception of Exhibits A and B.

Catchwords:
DEVELOPMENT APPLICATION – proposed subdivision of existing residential lot – no demolition, construction or subdivision works proposed – whether the proposed development will have a detrimental impact on Bovington, a listed heritage item – whether the proposed development will have a detrimental impact on the Cremorne Heritage Conservation Area – variation to minimum lot size – whether the Applicants request to vary the lot size standard should be upheld

Legislation Cited:
Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2013

Cases Cited:
Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Parrott v Kiama [2004] NSWLEC 77
Trustees of the Marist Fathers for the Province of Australia v Hunters Hill [2019] NSWLEC 1255
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
North Sydney Development Control Plan 2013
NSW Heritage Manual ‘Assessing Heritage Significance’ guidelines, NSW Heritage Office, 2001
The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013

Category: Principal judgment
Parties: Anne McCusker (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
D Loether (Solicitor) (Applicant)
D Birch (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2019/305102
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA 37/2019) by North Sydney Council. The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks consent for the subdivision of an existing Torrens Title lot into two allotments. The subdivision is proposed at 66 Shellcove Road, Neutral Bay, Lot 1 DP 791424 (the site). No demolition, construction or works are proposed as part of the development application.
Since the filing of the appeal the Applicant has been granted leave to amend their development application. The amended application proposes that Lot 1 would contain the existing dwelling with a lot area of 630m² and proposed Lot 2 would be vacant with a lot area of 405m² (Exhibit B).
The Applicant has provided an indicative building design for a dwelling on proposed Lot 2 (the indicative plans), seeking 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: [2021] NSWLEC 1310
Decision Date: 11 June 2021

CaseChat Overview and Summary

McCusker v North Sydney Council was a dispute between a local council and a property owner regarding a development application for subdivision of a property located at 66 Shellcove Road, Neutral Bay. The applicant, McCusker, sought to subdivide their property, but the North Sydney Council refused the application on the basis that it did not comply with the local planning laws. McCusker appealed the council’s decision, arguing that the refusal was unreasonable and that the application should be approved. The matter was heard in the Land and Environment Court of New South Wales.

The central legal issues in the case were whether the council’s decision to refuse the development application was lawful and whether the applicant had established that the refusal was unreasonable. The court had to consider the relevant planning laws and regulations, as well as the evidence presented by both parties. The court also had to determine whether the applicant had a valid argument that the refusal was based on an incorrect interpretation of the planning laws.

In its decision, the court found that the council’s decision to refuse the development application was lawful and that the applicant had not established that the refusal was unreasonable. The court held that the application did not comply with the local planning laws and that the applicant had not provided sufficient evidence to overcome the council’s concerns. The court also found that the applicant had not demonstrated that the refusal was based on an incorrect interpretation of the planning laws. The court dismissed the appeal and refused the development application.

The court ordered that the appeal be dismissed, the development application be refused, and the exhibits be returned with the exception of Exhibits A and B. The court’s decision provides guidance on the interpretation and application of local planning laws and the standard of review for decisions made under those laws.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No DA 37/2019 for subdivision of Lot 1 DP 79142 at 66 Shellcove Road, Neutral Bay is refused.

(3) The exhibits are returned with the exception of Exhibits A and B.

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:	McCusker v North Sydney Council [2021] NSWLEC 1310
Hearing dates:	20-21 April 2021, written submissions 5, 14 and 18 May 2021
Date of orders:	11 June 2021
Decision date:	11 June 2021
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application No DA 37/2019 for subdivision of Lot 1 DP 79142 at 66 Shellcove Road, Neutral Bay is refused. (3) The exhibits are returned with the exception of Exhibits A and B.
Catchwords:	DEVELOPMENT APPLICATION – proposed subdivision of existing residential lot – no demolition, construction or subdivision works proposed – whether the proposed development will have a detrimental impact on Bovington, a listed heritage item – whether the proposed development will have a detrimental impact on the Cremorne Heritage Conservation Area – variation to minimum lot size – whether the Applicants request to vary the lot size standard should be upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2013
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Parrott v Kiama [2004] NSWLEC 77 Trustees of the Marist Fathers for the Province of Australia v Hunters Hill [2019] NSWLEC 1255 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	North Sydney Development Control Plan 2013 NSW Heritage Manual ‘Assessing Heritage Significance’ guidelines, NSW Heritage Office, 2001 The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013
Category:	Principal judgment
Parties:	Anne McCusker (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: D Loether (Solicitor) (Applicant) D Birch (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Sparke Helmore (Respondent)
File Number(s):	2019/305102
Publication restriction:	No