PDS Engineering Division Pty Ltd v North Sydney Council - [2025] NSWLEC 1583

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: PDS Engineering Division Pty Ltd v North Sydney Council [2025] NSWLEC 1583
Hearing dates: 3-4 July 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Modification application DA.66/23/2, seeking to modify development consent No. 66/23 for the partial demolition of heritage item and construction of part 4 and part 11 storey mixed use building comprising 8 studio units, 1 x 2 bed, 9 x 3 bed and 16 x 5 bed units for a total of 52 units, 4 levels of basement carparking containing 51 car parking spaces on land at 290 Pacific Highway, Crows Nest is refused.
(3) All Exhibits are returned, except for Exhibits A, B and C.

Catchwords:
MODIFICATION APPLICATION – whether development is substantially the same development – retention of heritage fabric – reasons given for the grant of consent sought to be modified

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 8.15
Environmental Planning and Assessment Regulation 2021 (NSW), s 113
North Sydney Local Environmental Plan 2013, cl 5.10

Cases Cited:
Arrage v Inner West Council [2019] NSWLEC 85
Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31
Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468; (1998) 43 NSWLR 468
PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:
Australia ICOMOS, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013
Department of Planning and Environment, Assessing Heritage Significance, 2023
North Sydney Development Control Plan, 2013

Category: Principal judgment
Parties: PDS Engineering Division Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
M Wright SC / T To (Applicant)
S Burveling (Respondent)
Solicitors:
Holding Redlich (Applicant)
Matthews Folbigg (Respondent)

File Number(s): 2025/124288
Publication restriction: Nil

JUDGMENT

COMMISSIONER: On 8 November 2024, the Court’s decision in PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722 (PDS No.1) granted consent to development application No. DA66/23 for the proposes of development involving restoration of a heritage item, partial demolition works, and construction of a 11-storey mixed use building comprising two floors of commercial premises, 52 residential units, and four levels of basement parking, public domain and landscaping works, and other associated works, at Lot 1 in Deposited Plan 1279891, referred to as 286-294 Pacific Highway, Crows Nest (the Original Consent).
In general terms, the development proposed the restoration and partial demolition of an existing heritage listed building, construction of a mixed use building with commercial tenancies and residential apartments over, and public domain works and landscaping.
Then, as now, an existing two-storey Art Deco style building that was once the site of a shop and…

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: [2025] NSWLEC 1583
Decision Date: 15 August 2025

CaseChat Overview and Summary

PDS Engineering Division Pty Ltd sought judicial review of a decision by North Sydney Council to refuse their modification application for a mixed-use building. The dispute was heard in the Land and Environment Court of New South Wales. The key issue before the court was whether the Council's decision to refuse the modification application was lawful, rational, and based on relevant considerations. Specifically, the court needed to determine if the Council had properly considered the statutory requirements under the Environmental Planning and Assessment Act 1979, and whether the refusal was justified in terms of the impact on the heritage value of the site.

The court examined the evidence and submissions from both parties and concluded that the Council had acted within its statutory powers and had considered all relevant matters. The court found that the proposed development would significantly alter the heritage value of the site and that the refusal was a reasonable and lawful exercise of the Council's discretion. The court also noted that the applicant had not adequately demonstrated how the proposed development would mitigate the adverse impacts on the heritage item. As such, the court upheld the Council's decision to refuse the modification application.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Modification application DA.66/23/2, seeking to modify development consent No. 66/23 for the partial demolition of heritage item and construction of part 4 and part 11 storey mixed use building comprising 8 studio units, 1 x 2 bed, 9 x 3 bed and 16 x 5 bed units for a total of 52 units, 4 levels of basement carparking containing 51 car parking spaces on land at 290 Pacific Highway, Crows Nest is refused.

(3) All Exhibits are returned, except for Exhibits A, B and C.

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:	PDS Engineering Division Pty Ltd v North Sydney Council [2025] NSWLEC 1583
Hearing dates:	3-4 July 2025
Date of orders:	15 August 2025
Decision date:	15 August 2025
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Modification application DA.66/23/2, seeking to modify development consent No. 66/23 for the partial demolition of heritage item and construction of part 4 and part 11 storey mixed use building comprising 8 studio units, 1 x 2 bed, 9 x 3 bed and 16 x 5 bed units for a total of 52 units, 4 levels of basement carparking containing 51 car parking spaces on land at 290 Pacific Highway, Crows Nest is refused. (3) All Exhibits are returned, except for Exhibits A, B and C.
Catchwords:	MODIFICATION APPLICATION – whether development is substantially the same development – retention of heritage fabric – reasons given for the grant of consent sought to be modified
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 8.15 Environmental Planning and Assessment Regulation 2021 (NSW), s 113 North Sydney Local Environmental Plan 2013, cl 5.10
Cases Cited:	Arrage v Inner West Council [2019] NSWLEC 85 Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468; (1998) 43 NSWLR 468 PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Australia ICOMOS, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 Department of Planning and Environment, Assessing Heritage Significance, 2023 North Sydney Development Control Plan, 2013
Category:	Principal judgment
Parties:	PDS Engineering Division Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Wright SC / T To (Applicant) S Burveling (Respondent) Solicitors: Holding Redlich (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2025/124288
Publication restriction:	Nil