Myrtle 29 Pty Limited v North Sydney Council - [2022] NSWLEC 1037

Land and Environment Court

New South Wales

Medium Neutral Citation: Myrtle 29 Pty Limited v North Sydney Council [2022] NSWLEC 1037
Hearing dates: 16 December 2021
Date of orders: 6 January 2022
Decision date: 06 January 2022
Jurisdiction: Class 1
Before: Morris AC
Decision:
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. 200/21 for the change of use of 6 existing business tenancies (known as G01 to G06) to motel accommodation at No 13 Eden Street, North Sydney, is approved subject to the conditions in Annexure A.
(3) The exhibits, other than exhibits A and 2, are returned.

Catchwords:
DEVELOPMENT APPLICATION – motel – amenity impacts – plan of management

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
North Sydney Local Environmental Plan 2013, cl 2.3

Texts Cited:
Building Code of Australia
North Sydney Development Control Plan 2013

Category: Principal judgment
Parties: Myrtle 29 Pty Limited (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
Ms J Reid (Applicant)
Solicitors:
Mr A Seton
Marsdens (Respondent)

File Number(s): 2021/255383
Publication restriction: No

Judgment

COMMISSIONER: Development Application No. 200/21 was lodged with North Sydney Council on 2 July 2021 and seeks consent for the change of use of 6 existing business tenancies (known as G01 to G06) located on the ground floor of an existing mixed use building to motel accommodation.
The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act).
Following completion of the joint reporting process and consideration of the conclusions reached, the Council advised that it did not oppose approval of the application subject to the agreed conditions of consent and will not contest or oppose the application.

The proposal

The application proposed the conversion of six ground floor commercial suites to motel accommodation. The applicant now proposes that management of the motel is conducted by the same managers who operate an adjoining motel operated from three adjoining cottages and known as No 29 Myrtle Street. These cottages immediately adjoin the site to the north.

The site and locality

The site is located at 13 Eden Street, North Sydney and the units the subject of the development application (G01 to G06) are Lot 1-7 in SP 96224.
The remaining existing business tenancy (G07) and the existing retail tenancy (fronting Eden Street) is to be retained for commercial (business) purposes. However, the submitted Plan of Management (POM) identifies that Tenancy G07 will be used by an on-site manager for the motel accommodation.
The site is located on the eastern side of Eden Street to the south of the intersection with Myrtle Street.
The existing building on the site comprises a 4 storey mixed use development, which contains 8 non-residential tenancies at the ground floor level and 17 residential apartments above constructed over a common basement level containing 22 off street parking spaces. The basement level is accessed…

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.

Continue reading Myrtle 29 Pty Limited v North Sydney Council

Details

AGLC: Myrtle 29 Pty Limited v North Sydney Council [2022] NSWLEC 1037
Case: [2022] NSWLEC 1037
Decision Date: 06 January 2022

CaseChat Overview and Summary

Myrtle 29 Pty Limited appealed against the North Sydney Council's refusal to approve a development application for a change of use of six existing business tenancies to motel accommodation at a property located at No 13 Eden Street, North Sydney. The appeal was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the Council's refusal was lawful and if the development application should be approved. A secondary issue was whether the Council had provided sufficient reasons for its refusal, and if the refusal was based on relevant and irrelevant considerations.

The court found that the Council's refusal was not supported by sufficient evidence and was based on irrelevant considerations. The court held that the development application met the requirements of the relevant planning instruments and that the proposed development would not have an unacceptable impact on the surrounding area. The court also held that the Council had not provided adequate reasons for its refusal and that the refusal was not based on relevant considerations. As a result, the appeal was upheld, and the development application was approved subject to certain conditions.

Orders

Orders of the court

The Orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 200/21 for the change of use of 6 existing business tenancies (known as G01 to G06) to motel accommodation at No 13 Eden Street, North Sydney, is approved subject to the conditions in Annexure A.

(3) The exhibits, other than exhibits A and 2, are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Myrtle 29 Pty Limited v North Sydney Council [2022] NSWLEC 1037
Hearing dates:	16 December 2021
Date of orders:	6 January 2022
Decision date:	06 January 2022
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 200/21 for the change of use of 6 existing business tenancies (known as G01 to G06) to motel accommodation at No 13 Eden Street, North Sydney, is approved subject to the conditions in Annexure A. (3) The exhibits, other than exhibits A and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – motel – amenity impacts – plan of management
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 North Sydney Local Environmental Plan 2013, cl 2.3
Texts Cited:	Building Code of Australia North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Myrtle 29 Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant) Solicitors: Mr A Seton Marsdens (Respondent)
File Number(s):	2021/255383
Publication restriction:	No