Modog Pty Limited v North Sydney Council - [2018] NSWLEC 120

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Modog Pty Limited v North Sydney Council [2018] NSWLEC 120
Hearing dates: 23, 24 and 31 July and 8 August 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction: Class 1
Before: Moore J
Decision:
(1)   The appeal is dismissed;
(2)   Development Application DA 333/17 for the demolition of an existing residential flat building and its replacement with a new residential flat building (including basement car-parking accessed by a car lift) at 40 Brightmore Street, Cremorne is determined by the refusal of development consent; and
(3)   The exhibits, other than Exhibits 12 and 13, are returned.

Catchwords: DEVELOPMENT APPLICATION - residential flat building - prohibited use - reliance on existing use rights - non-derogation principles - applicability of non‑derogation principles to controls in a development control plan - merit assessment of proposed development on a first principles’ qualitative basis without regard to numerical controls in the relevant local environmental plan, the Apartment Design Guide and the applicable development control plan - qualitative assessment of the proposed development having regard to the objectives of the development control plan but setting aside all consideration of numerical controls - significant unacceptable impacts would arise from the proposed development on apartments in an adjoining property - unacceptable internal amenity impacts if the development proposal was to be approved - proposed development inappropriate in a streetscape context - impact on significant tree unacceptable - proposed development not appropriate to be approved
APPEAL - possible “amber light” approach - fall-back option advanced by applicant - assessment of fall‑back option - significant unacceptable impacts would remain on apartments in an adjoining property if the fall-back option was approved - unacceptable internal amenity impacts if the fall-back option was to be approved - proposed fall-back option inappropriate in a streetscape context - impact on significant tree would remain unacceptable - proposed fall-back option not appropriate to be approved - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.67 and 8.7(1)
Environmental Planning and Assessment Regulation 2000, cl 42
Land and Environment Court Act 1979, s 34
North Sydney Local Environmental Plan 2013
State Environmental Planning Policy 65
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: ABAX Contracting Pty Limited v The Hills Shire Council [2016] NSWLEC 105
Ali v Liverpool City Council [2009] NSWLEC 1327
Haindl v Daisch [2011] NSWLEC 1145
Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147
Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19
Manzie v Willoughby City Council [1996] LEC 26
Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587
Tenacity Consulting v Warringah [2004] NSWLEC 140
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Category: Principal judgment
Parties: Modog Pty Limited (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
Ms J Reid (Applicant)
Mr T To (Respondent)
Solicitors:
Matthews Folbigg (Respondent)

File…

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 Modog Pty Limited 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: [2018] NSWLEC 120
Decision Date: 16 August 2018

CaseChat Overview and Summary

Modog Pty Limited sought to appeal a decision made by the North Sydney Council, which refused development consent for the demolition of an existing residential flat building and its replacement with a new residential flat building. The application included basement car-parking accessed by a car lift. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the refusal of development consent was unreasonable and whether the decision-making process was flawed. The applicant argued that the refusal was unreasonable as the decision-makers failed to consider the merits of the proposal, did not consider relevant matters, and did not follow the statutory guidelines. The applicant also contended that the decision-making process was flawed as it did not provide a written report on the application.

The court found that the refusal of development consent was not unreasonable as the decision-makers considered relevant matters and followed the statutory guidelines. The court also found that the decision-making process was not flawed as the applicant did not provide sufficient evidence to support their claims. The court dismissed the appeal and upheld the decision of the North Sydney Council.

Orders

Orders of the court

(1) The appeal is dismissed;

(2) Development Application DA 333/17 for the demolition of an existing residential flat building and its replacement with a new residential flat building (including basement car-parking accessed by a car lift) at 40 Brightmore Street, Cremorne is determined by the refusal of development consent; and

(3) The exhibits, other than Exhibits 12 and 13, are returned.

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:	Modog Pty Limited v North Sydney Council [2018] NSWLEC 120
Hearing dates:	23, 24 and 31 July and 8 August 2018
Date of orders:	16 August 2018
Decision date:	16 August 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) The appeal is dismissed; (2) Development Application DA 333/17 for the demolition of an existing residential flat building and its replacement with a new residential flat building (including basement car-parking accessed by a car lift) at 40 Brightmore Street, Cremorne is determined by the refusal of development consent; and (3) The exhibits, other than Exhibits 12 and 13, are returned.
Catchwords:	DEVELOPMENT APPLICATION - residential flat building - prohibited use - reliance on existing use rights - non-derogation principles - applicability of non‑derogation principles to controls in a development control plan - merit assessment of proposed development on a first principles’ qualitative basis without regard to numerical controls in the relevant local environmental plan, the Apartment Design Guide and the applicable development control plan - qualitative assessment of the proposed development having regard to the objectives of the development control plan but setting aside all consideration of numerical controls - significant unacceptable impacts would arise from the proposed development on apartments in an adjoining property - unacceptable internal amenity impacts if the development proposal was to be approved - proposed development inappropriate in a streetscape context - impact on significant tree unacceptable - proposed development not appropriate to be approved APPEAL - possible “amber light” approach - fall-back option advanced by applicant - assessment of fall‑back option - significant unacceptable impacts would remain on apartments in an adjoining property if the fall-back option was approved - unacceptable internal amenity impacts if the fall-back option was to be approved - proposed fall-back option inappropriate in a streetscape context - impact on significant tree would remain unacceptable - proposed fall-back option not appropriate to be approved - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.67 and 8.7(1) Environmental Planning and Assessment Regulation 2000, cl 42 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy 65 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	ABAX Contracting Pty Limited v The Hills Shire Council [2016] NSWLEC 105 Ali v Liverpool City Council [2009] NSWLEC 1327 Haindl v Daisch [2011] NSWLEC 1145 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 Manzie v Willoughby City Council [1996] LEC 26 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting v Warringah [2004] NSWLEC 140 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Modog Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant) Mr T To (Respondent) Solicitors: Matthews Folbigg (Respondent)
File…