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Pafburn v North Sydney Council

Pafburn v North Sydney Council

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Case Copied 16 August 2005 16 min read

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Land and Environment Court

of New South Wales

CITATION:
Pafburn v North Sydney Council [2005] NSWLEC 444

PARTIES:
Applicant:
Pafburn Pty Ltd
Respondent:
North Sydney Council

FILE NUMBER(S):
11071 of 2004

CORAM:
Roseth SC

KEY ISSUES:
Development Application - Development Control Plan :- Planning principle: criteria for assessing impact on neighbouring properties
SEPP 1 Objection

CASES CITED:
Tenacity Consulting v Warringah [2004] NSWLEC 140 Parsonage v Ku-ring-gai Council [2004] NSWLEC 347 ;
Meriton v Sydney City Council [2004] NSWLEC 313;
Super Studio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING: 09/08/2005 and 10/08/2005

DATE OF JUDGMENT:

08/16/2005

LEGAL REPRESENTATIVES:
Applicant:
Mr P Tomasetti, barrister instructed by Mr D Tudehope of O'Hara Co
Applicant:
Ms H Irish, barrister instructed by Ms M Tregoning of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

16 August 2005

11071 of 2004 Pafburn Pty Ltd v North Sydney Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by North Sydney Council (the council) of a development application to demolish the existing house and erect a residential flat building containing 19 apartments on lot B DP370405, known as 197 Walker Street, North Sydney.

2 The site is on the eastern side of Walker Street, between Ridge and Hampden Streets. It is a battleaxe allotment with an area of 1,400m2 excluding the access handle. A brick house now stands on the site. The southeast part contains vegetation and rock outcrops.

3 The site is in the North Sydney Centre Planning Area and within that area, in the Hampden Neighbourhood. It is not within a conservation area. To the north, the site adjoins the Wenona School grounds, on which stands a three-level structure on the boundary containing an indoor swimming pool. Further north is a 14-storey apartment building at 95 Ridge Street. To the west the site adjoins a nine-storey apartment building at 199 Walker Street. To the east is the Warringah Expressway. To the south the site adjoins 191-195 Walker Street, which contains an eight-storey apartment building close to Walker Street (and distant from the site) and a five-storey apartment building close to the Expressway.

4 The applicant proposes to demolish the existing house and erect a five-storey apartment building containing 19 dwellings with basement parking.

5 The applicant lodged the application in June 2004. Following notification, the council received 34 submissions. The applicant lodged the appeal against deemed refusal in September 2004. On 27 September 2004 the council resolved to defend the appeal. With the consent of the parties, the Court appointed three experts: Mr R Chambers, a town planner, Mr C Hallam a traffic consultant, and Mr J Mills, an expert on assessing solar access and view loss. The matter was set down for hearing in April 2005; however, the date was vacated to allow the applicant to prepare amended drawings that required re-notification. At a case management meeting on 13 July 2005 the Court…

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: [2005] NSWLEC 444
Decision Date: 08/16/2005

CaseChat Overview and Summary

Pafburn Pty Ltd sought approval from North Sydney Council for a development application to demolish an existing house and construct a five-storey apartment building on a site at 197 Walker Street, North Sydney. The council deemed the application refused, prompting Pafburn to appeal to the Land and Environment Court. The primary issues for determination were whether non-compliance with height controls was justified, the internal amenity of the proposed building was acceptable, and the survival of a Norfolk Island Pine on an adjacent property was assured. The council argued that the proposal's height exceeded permissible limits, causing unacceptable overshadowing of neighbouring properties, particularly a third-floor apartment at 191-195 Walker Street. Pafburn contended that the impact was minor and the overshadowing was due to the complying parts of the proposal. The court, after detailed examination of expert evidence, concluded that the non-complying elements of the proposal caused significant overshadowing, violating the planning principle to maintain solar access and making the proposal unacceptable. Although the proposal's internal solar access was deemed acceptable, the overshadowing impact on the neighbouring property due to non-compliance with planning controls rendered the proposal unacceptable. The court also found that the survival of the Norfolk Island Pine was likely, and non-compliance with the building height plane and landscaped area did not result in adverse impacts.

The court ordered the applicant to amend the proposal to fit within a building envelope that eliminates additional shadow on the living area windows of the third-floor apartment in 191-195 Walker Street and directed the parties to reach an agreement on a timetable for progressing the matter, or alternatively, to present at a callover on 23 August 2005. The council was to be compensated for the costs incurred in assessing further versions of the proposal.

Orders