WINIM Developments Pty Limited v North Sydney Council - [2024] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation: WINIM Developments Pty Limited v North Sydney Council [2024] NSWLEC 1328
Hearing dates: 3-4 June 2024
Date of orders: 18 June 2024
Decision date: 18 June 2024
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The Applicant is granted leave to rely on amended plans and other documents listed in Annexure A, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.
(2) The appeal is upheld.
(3) Development application DA50/23 for alterations and additions to existing buildings and addition of a new five-storey rear wing extension containing three residential apartments and 42 hotel rooms above basement parking at 12A Carabella Street, Kirribilli is determined by the grant of consent subject to conditions of consent at Annexure B.
(4) All exhibits are returned, except for Exhibits A, B, H, 1 and 11.

Catchwords:
DEVELOPMENT APPLICATION – whether proposed use is permitted in R4 High Density Residential zone – heritage conservation – heritage incentives facilitate conservation - whether view loss is reasonable – public submissions are considered

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 4.65, 8.7, 8.15
Land and Environment Court Act 1979, s 39
Environmental Planning and Assessment Regulation 2021, s 38
North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.10, 6.12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, ss 4, 45, 47, 48, Pt 3
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2
Standard Instrument – Principal Local Environmental Plan 2006

Cases Cited:
David Fox v North Sydney Council [2016] NSWLEC 1366
Fox v North Sydney Council [2020] NSWLEC 1056
George v City of Parramatta Council [2017] NSWLEC 1366
Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
North Sydney Community Engagement Policy
North Sydney Development Control Plan 2013
NSW Department of Planning and Environment, Apartment Design Guide 2015

Category: Principal judgment
Parties: WINIM Developments Pty Limited (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
H Irish (Respondent)
Solicitors:
Addisons (Applicant)
Matthews Folbigg (Respondent)

File Number(s): 2023/148634
Publication restriction: Nil

Judgment

COMMISSIONER: Two four-storey buildings, connected in certain ways and known together as Glenferrie Lodge Hotel, stand on the western side of Carabella Street, Kirribilli.
Development is proposed on the site, in the form of alterations and additions that would result in three residential apartments, and a hotel comprising 43 rooms, over basement car parking for 7 vehicles.
To this end, development application no. DA/50/2023 (the original DA) was lodged with North Sydney Council, the Respondent in these proceedings, on 23 February 2023, and was notified…

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 1328
Decision Date: 18 June 2024

CaseChat Overview and Summary

WINIM Developments Pty Limited sought relief from the Land and Environment Court of New South Wales in relation to development application DA50/23, concerning proposed alterations and additions to existing buildings at 12A Carabella Street, Kirribilli. The North Sydney Council had previously refused consent for the development, prompting WINIM to appeal the decision. The court was required to determine whether the appeal should be upheld, and if so, whether consent should be granted subject to conditions. Additionally, the court had to decide on the admissibility of amended plans and other documents submitted by WINIM.

The legal issues encompassed the validity of the refusal of consent by the Council, the appropriateness of granting consent subject to conditions, and the admissibility of the amended plans and documents. The court considered whether the Council's decision was lawful and whether WINIM had provided sufficient justification for the proposed development. The admissibility of the amended documents was also scrutinised to determine if they could be considered in the appeal.

The court found that the refusal of consent was not justified and that the proposed development met the criteria for approval. It was determined that the amended plans and documents provided by WINIM were relevant and could be considered. The court held that the development application should be granted consent subject to the conditions outlined in Annexure B. Consequently, the appeal was upheld, and the development application was determined by the grant of consent.

The final orders of the court granted WINIM leave to rely on amended plans and other documents, upheld the appeal, granted consent for the development application subject to specified conditions, and directed the return of exhibits, except for certain documents.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is granted leave to rely on amended plans and other documents listed in Annexure A, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development application DA50/23 for alterations and additions to existing buildings and addition of a new five-storey rear wing extension containing three residential apartments and 42 hotel rooms above basement parking at 12A Carabella Street, Kirribilli is determined by the grant of consent subject to conditions of consent at Annexure B.

(4) All exhibits are returned, except for Exhibits A, B, H, 1 and 11.

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:	WINIM Developments Pty Limited v North Sydney Council [2024] NSWLEC 1328
Hearing dates:	3-4 June 2024
Date of orders:	18 June 2024
Decision date:	18 June 2024
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on amended plans and other documents listed in Annexure A, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Development application DA50/23 for alterations and additions to existing buildings and addition of a new five-storey rear wing extension containing three residential apartments and 42 hotel rooms above basement parking at 12A Carabella Street, Kirribilli is determined by the grant of consent subject to conditions of consent at Annexure B. (4) All exhibits are returned, except for Exhibits A, B, H, 1 and 11.
Catchwords:	DEVELOPMENT APPLICATION – whether proposed use is permitted in R4 High Density Residential zone – heritage conservation – heritage incentives facilitate conservation - whether view loss is reasonable – public submissions are considered
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 4.65, 8.7, 8.15 Land and Environment Court Act 1979, s 39 Environmental Planning and Assessment Regulation 2021, s 38 North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.10, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 4, 45, 47, 48, Pt 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Standard Instrument – Principal Local Environmental Plan 2006
Cases Cited:	David Fox v North Sydney Council [2016] NSWLEC 1366 Fox v North Sydney Council [2020] NSWLEC 1056 George v City of Parramatta Council [2017] NSWLEC 1366 Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	North Sydney Community Engagement Policy North Sydney Development Control Plan 2013 NSW Department of Planning and Environment, Apartment Design Guide 2015
Category:	Principal judgment
Parties:	WINIM Developments Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) H Irish (Respondent) Solicitors: Addisons (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2023/148634
Publication restriction:	Nil