Morrison Design Partnership v North Sydney Council - [2007] NSWLEC 839

Land and Environment Court

of New South Wales

CITATION: Morrison Design Partnership v North Sydney Council and Another [2007] NSWLEC 839

PARTIES:
Applicant:
Morrison Design Partnership Pty Ltd
First Respondent:
North Sydney Council
Second Respondent:
Director General of Planning

FILE NUMBER(S): 11016 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Consent :-

CASES CITED: Farrah v Waringah Council and Others [2006] NSWLEC 191

DATES OF HEARING: 19/12/2007

DATE OF JUDGMENT:
24 December 2007

LEGAL REPRESENTATIVES: Applicant:
Mr N Hemmings QC
First respondent:
Mr A Panuccio, solicitor
Second Respondent:
Ms F Berglund, barrister

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth CS

24 December 2007

11016 of 2007 Morrison Design Partnership Pty Ltd v North Sydney Council (First Respondent) and the Director General of Planning (Second Respondent)

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application for change of use from boarding house to residential care facility including partial demolition and new buildings on lot 1 DP 356475 (7 Mann Avenue) and lot 1 DP 509072 (9 and 11 Mann Avenue) Neutral Bay. The sole grounds for the council’s refusal is the refusal by the Director General of Planning (the Director General) to issue a concurrence pursuant to clause 7(3) of State Environmental Planning Policy 10 – Retention of Low Cost Rental Accommodation. The Director General has been joined as the Second Respondent. The matter was listed for conciliation and/or determination under s34 of the Land and Environment Court Act 1979.

2 On 29 November 2007 Preston CJ heard an application by the Owners Corporation of Strata Plan 46768 (the owners of the neighbouring building 2 Hayes Street) to be joined as Third Respondents. His Honour refused the application. Paragraph 45 of the judgment states:

The current parties, Morrison Design Partnership, North Sydney Council and the Director General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal.

3 When the matter was listed for a conference under s34, it appeared that the Court’s determination would be made under s34(3)(b)(ii), since the Director General, having refused concurrence, was unlikely to reach agreement with the other parties. In the event, at the beginning of the conference, the Director General’s representative, Ms F Berglund, informed the Court that agreement had been reached among all three parties. Consequently, the appropriate limb of s34 for the determination of the appeal is s34(3)(a), which provides that the Commissioner shall dispose of the decision, as agreed to by the parties, so long as that decision is in accordance with the law. The evidence of objectors affects the decision only to the extent that it influences the terms of the council’s agreement with the other parties. In the present case, the council had accepted, as part of its…

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: [2007] NSWLEC 839
Decision Date: 24 December 2007

CaseChat Overview and Summary

This case involves an appeal by Morrison Design Partnership Pty Ltd against the North Sydney Council's refusal to grant a development application for a change of use from a boarding house to a residential care facility, including partial demolition and new buildings. The refusal was based on the Director General of Planning's refusal to issue a concurrence as required by clause 7(3) of the State Environmental Planning Policy 10. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the council's refusal to grant the development consent was justified. This involved examining the terms of the agreement reached between the council and the applicant, as well as the concerns raised by objectors to the development. The court had to determine whether the conditions of consent proposed by the applicant adequately addressed the concerns of the objectors and whether the refusal was in accordance with the law.

The court found that the conditions of consent proposed by the applicant were sufficient to address the objectors' concerns, particularly those relating to traffic, parking, and the impact on neighbouring properties. The court also accepted the applicant's argument that the proposed height of the development was justified under the circumstances. The court concluded that the appeal should be upheld and granted the development consent subject to the conditions outlined in the judgment.

The final orders of the court were that the appeal was upheld, the development application was granted subject to the conditions in Annexure A, and the exhibits were to be returned. This decision allows the applicant to proceed with the development, provided they adhere to the specified conditions.

Orders