PDS Engineering Division Pty Ltd v North Sydney Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: PDS Engineering Division Pty Ltd v North Sydney Council [2024] NSWLEC 1722
Hearing dates: 12-13 September and 16-17 September 2024
Date of orders: 08 November 2024
Decision date: 08 November 2024
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant is to pay the Council’s costs thrown away as a result of the amending of the development application, as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development application No. DA66/23 for the proposed 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, is determined by the grant of consent, subject to conditions of consent at Annexure A .

(4) All Exhibits are returned, except for Exhibits A, B, D and L.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development in MU1 and R2 zone – heritage conservation – whether conservation incentives apply

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.30, 4.16, 8.7, 8.15(3)

Heritage Act 1977, ss 57, 59

Land and Environment Court Act 1979, s 39

Environmental Planning and Assessment (Special Infrastructure Contribution - St Leonards and Crows Nest) Determination 2020

Environmental Planning and Assessment (Special Infrastructure Contribution - St Leonards and Crows Nest) Direction 2020

Environmental Planning and Assessment Regulation 2021, ss 29, 38, 288A

North Sydney Local Environmental Plan 2013, cll 1.7, 2.3, 4.3, 4.4A, 4.6, 5.10, 6.12A, 7.6, Sch 5

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021

Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7

State Environmental Planning Policy (Housing) 2021, ss 144, 145, 147, 148; Ch 4; Sch 9

State Environmental Planning Policy (Infrastructure) 2007 (repealed)

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2.121, 2.122

State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022

Cases Cited:

Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133

Holt Avenue Cremorne Pty Ltd v North Sydney Council [2023] NSWLEC 1736

Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233

Initial Action Pty Ltd v Woollahra Municipal Council 2018) 236 LGERA 256; [2018] NSWLEC 118

Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141

Swansea RSL Club & Rosecorp Pty Ltd v Council of the City of Lake Macquarie [2005] NSWLEC 755

Texts Cited:

Apartment Design Guide

National Construction Code

North Sydney Development Control Plan 2013

NSW Department of Planning, Housing and Infrastructure, Explanation…

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Details
Case
[2024] NSWLEC 1722
Decision Date

CaseChat Overview and Summary

PDS Engineering Division Pty Ltd sought to appeal a decision by North Sydney Council regarding a development application. The application related to a proposed development on a site at 286-294 Pacific Highway, Crows Nest, including restoration of a heritage item, partial demolition, and the construction of a mixed-use building with commercial and residential spaces, basement parking, and public domain works. The primary issue for the Court was whether the Council's decision to reject the development application was lawful and if the appeal should be upheld. The Court also had to consider whether the Applicant should bear the costs thrown away due to the amendment of the development application.

The Court found that the Council's decision was not in accordance with the law. It determined that the Council had not appropriately exercised its discretion when refusing the development application. The Court emphasised that the Applicant's proposed development, which included the restoration of a heritage item, aligned with the objectives of the Environmental Planning and Assessment Act 1979. It was held that the Council's rejection was not supported by sufficient evidence and that the application should have been granted subject to certain conditions. The Court also found that the Applicant was liable for the costs incurred by the Council due to the amendment of the development application, as per section 8.15(3) of the Act.

As a result of the Court's determination, the appeal was upheld, and the development application was granted subject to specified conditions. The Court ordered that the Applicant pay the Council's costs thrown away due to the amendment of the development application. Additionally, the Court ordered that all exhibits be returned, except for specific exhibits referenced in the decision. The development application, as amended, was to proceed under the terms and conditions outlined in the Court's judgment.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is to pay the Council’s costs thrown away as a result of the amending of the development application, as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development application No. DA66/23 for the proposed 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, is determined by the grant of consent, subject to conditions of consent at Annexure A .

(4) All Exhibits are returned, except for Exhibits A, B, D and L.

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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