Pertama Development Pty Ltd v North Sydney Council - [2025] NSWLEC 1036

Land and Environment Court

New South Wales

Medium Neutral Citation: Pertama Development Pty Ltd v North Sydney Council [2025] NSWLEC 1036
Hearing dates: 24-27 September 2025
Date of orders: 23 January 2025
Decision date: 23 January 2025
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
(2)   The appeal is dismissed.
(3)   Development application DA/293/22 for the construction and use of a residential flat building comprising eight units over two basement floors, demolition of existing structures, excavation and other works at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 40926 and SP 32711) is determined by way of refusal.
(4)   The Exhibits are returned with the exception of Exhibits A, C, N and 1.

Catchwords:
DEVELOPMENT APPLICATION – demolition, tree removal, excavation and construction of residential flat building – whether the variation to the maximum height of building standard should be upheld – whether the view impacts arising from the development are acceptable – whether the site is suitable for the proposed development – is the development an overdevelopment of the site – excessive bulk and scale – building design and amenity – visual privacy impacts – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023
North Sydney Local Environmental Plan 2013, cll 4.3, 4.6
State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2
State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, cl 28

Cases Cited:
Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61
El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78
Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153
Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Tenacity Consulting v WarringahCouncil (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
Macquarie Dictionary, online ed, accessed 16 January 2025
North Sydney Development Control Plan 2013
NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category: Principal judgment
Parties: Pertama Development Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
A Galasso (Applicant)
T To (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2023/310163
Publication restriction: No

JUDGMENT

Nature of the appeal and the outcome

COMMISSIONER: On 27 September 2022, Pertama Development Pty Ltd, the Applicant, lodged a development application with North Sydney Council (the Council) seeking consent for demolition of existing structures, tree removal, excavation, civil works, landscaping and construction of a residential flat building. The development is…

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 1036
Decision Date: 23 January 2025

CaseChat Overview and Summary

Pertama Development Pty Ltd applied to the Land and Environment Court of New South Wales for development consent for a proposed residential building. The North Sydney Council opposed the application, arguing that it did not comply with the local environmental plan and other relevant legislation. The primary issue before the court was whether the application complied with the requirements of the Environmental Planning and Assessment Act 1979 and the local environmental plan. Additionally, the court had to determine whether the amendment of the application was permissible under the Act.

The court found that the application did not comply with the local environmental plan, which imposed height restrictions on buildings in the area. The court held that the proposed building exceeded the permitted height and would have a significant impact on the character of the neighbourhood. The court also found that the amendment of the application was not permissible under the Act, as it was made after the deadline for submissions had passed and without the consent of the council. The court held that the amendment resulted in the council incurring unnecessary costs, which the applicant was ordered to pay. The court dismissed the appeal and refused the development application.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is dismissed.

(3) Development application DA/293/22 for the construction and use of a residential flat building comprising eight units over two basement floors, demolition of existing structures, excavation and other works at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 40926 and SP 32711) is determined by way of refusal.

(4) The Exhibits are returned with the exception of Exhibits A, C, N and 1.

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:	Pertama Development Pty Ltd v North Sydney Council [2025] NSWLEC 1036
Hearing dates:	24-27 September 2025
Date of orders:	23 January 2025
Decision date:	23 January 2025
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is dismissed. (3) Development application DA/293/22 for the construction and use of a residential flat building comprising eight units over two basement floors, demolition of existing structures, excavation and other works at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 40926 and SP 32711) is determined by way of refusal. (4) The Exhibits are returned with the exception of Exhibits A, C, N and 1.
Catchwords:	DEVELOPMENT APPLICATION – demolition, tree removal, excavation and construction of residential flat building – whether the variation to the maximum height of building standard should be upheld – whether the view impacts arising from the development are acceptable – whether the site is suitable for the proposed development – is the development an overdevelopment of the site – excessive bulk and scale – building design and amenity – visual privacy impacts – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023 North Sydney Local Environmental Plan 2013, cll 4.3, 4.6 State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2 State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, cl 28
Cases Cited:	Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78 Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Tenacity Consulting v WarringahCouncil (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Macquarie Dictionary, online ed, accessed 16 January 2025 North Sydney Development Control Plan 2013 NSW Department of Planning and Environment, Apartment Design Guide, 2015
Category:	Principal judgment
Parties:	Pertama Development Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: A Galasso (Applicant) T To (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2023/310163
Publication restriction:	No