PDS Engineering Division Pty Ltd v North Sydney Council - [2024] NSWLEC 1722

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State Environmental Planning Policy (Infrastructure) 2007 (repealed)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…

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: [2024] NSWLEC 1722
Decision Date: 08 November 2024

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

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 [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…