Nuts 'n Berries v North Sydney Council - [2006] NSWLEC 516

Land and Environment Court

of New South Wales

CITATION: Nuts 'n Berries v North Sydney Council [2006] NSWLEC 516

PARTIES:
Applicant:
Nuts 'n Berries Pty Ltd & G Falcomata Pty Ltd
Respondent:
North Sydney Council

FILE NUMBER(S): 10204 of 2006

CORAM: Roseth SC

KEY ISSUES: Development Application :- compliance with building height plane, overshadowing and podium setback

CASES CITED: Karavellas v Sutherland Shire Council [2004] NSWLEC 251

DATES OF HEARING: 14/08/2006 and 15/08/2006

DATE OF JUDGMENT:
08/22/2006

LEGAL REPRESENTATIVES: Applicant:
Mr J Bingham, instructed by Ms A Segel, solicitors of Deacons
Respondent:
Ms G Furness, barrister instructed Ms R Mirosevich of Mallesons Stephen Jaques

JUDGMENT:

- 13 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 August 2006

10204 of 2006 Nuts ‘n Berries Pty Ltd and G Falcomata Pty Ltd v North Sydney Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a 14-storey commercial/residential building on lots 5, 6 and 7 DP 237104, known as 12-16 Berry Street, North Sydney.

The site

2 The site is on the northern side of Berry Street, west of Pacific Highway. Its width is 22m, its depth is 43m and its area is 952m2. Two four-storey buildings now occupy the site, with vehicular access from Doohat Lane.

3 The site’s northern boundary is also a zone boundary. On the other side are detached houses facing Doohat Avenue. At the corner of Doohat Avenue and Doohat Lane is a heritage-listed house, No 1 Doohat Avenue. The properties in Doohat Avenue are zoned residential with a 12m height limit.

4 To the east of the site is a four-storey commercial building, No 18 Berry Street, which is attached to the existing building on the site along its entire length. Further to the east and on the other side of the Highway is the business centre of North Sydney with its mixture of medium and high-rise buildings.

5 To the west of the site is a three-storey commercial building at 8-10 Berry Street. To the west of that site is a residential area with varying densities and heights up to four storeys. To the south, on the other side of Berry Street is an eleven-storey building comprising a four-storey commercial base with seven residential floors above. To the west, still on the south side of Berry Street, is 10/17 Berry Street, a three-storey apartment building with living rooms and balconies facing to the north.

The proposal and its history

6 The applicant proposes to demolish the existing buildings on the site and to erect commercial residential building consisting of a four-storey commercial base with a ten-storey residential tower containing 24 dwellings above, and basement parking for 34 vehicles.

7 The applicant lodged the development application in March 2005. Following notification, the council received 23 objections. In July 2005 the council considered and accepted the recommendation of its planning staff 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: [2006] NSWLEC 516
Decision Date: 22/08/2006

CaseChat Overview and Summary

Nuts 'n Berries Pty Ltd and G Falcomata Pty Ltd sought to appeal the North Sydney Council's refusal of their development application to demolish the existing buildings and erect a 14-storey commercial/residential building on lots 5, 6 and 7 DP 237104, known as 12-16 Berry Street, North Sydney. The key issues the court had to decide were whether the proposed development complied with the building height plane, the overshadowing, and the podium setback requirements. The applicant lodged the development application in March 2005, and following notification, the council received 23 objections. In July 2005, the council considered and accepted the recommendation of its planning staff to refuse the application. The applicant lodged the appeal in March 2006. The court found that the proposal breached the Building Height Plane and clause 28D of the Local Environmental Plan 2001, and disregarded the requirement for a 5m setback above the podium in the Area Character Statement. The objections under SEPP 1 were not well founded, except for the objection to the minimum allotment size. The appeal was dismissed, and the development application to demolish the existing buildings and erect a 14-storey commercial/residential building on lots 5, 6 and 7 DP 237104 was determined by refusal.

Orders