Winten Developments Pty Ltd v North Sydney Council - [1999] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION:

Winten Developments Pty Ltd v North Sydney Council [1999] NSWLEC 229

PARTIES

APPLICANT:
Winten Developments Pty Ltd

RESPONDENT:
North Sydney Council

NUMBER:

10260 of 1999

CORAM:

Talbot J

KEY ISSUES:

Development :- meaning of well-founded objection

LEGISLATION CITED:

DATES OF HEARING:

09/01/1999; 09/02/1999; 09/03/1999; 09/08/1999; 09/14/1999; 09/28/1999; 09/29/1999

DATE OF JUDGMENT DELIVERY:

10/06/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr W R Davison SC
SOLICITORS:
Pike Pike and Fenwick
RESPONDENT:
Ms S A Duggan (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No. 10260 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 6 October 1999

Winten Developments Pty Ltd
Applicant

v

North Sydney Council
Respondent

REASONS FOR JUDGMENT

1. The applicant is seeking development consent to demolish four existing houses, known as 78, 80, 82 and 84 Wycombe Road, Neutral Bay and then to construct a residential flat building comprising 26 dwellings being seven two bedroom units, eighteen three bedroom units and one four bedroom unit over 45 car spaces at two levels. The proposed building will read as six storeys to the Wycombe Road frontage and four storeys along Anderson Street.

2. The existing development to the north of the subject site is No 88 Wycombe Road, known as Tatlow Court comprising eight residential storeys over two parking levels.

3. The adjoining development to the south is No 1 Raymond Road, known as Wainoni which is a five storey brick residential flat building.

4. At the rear on the opposite side of Anderson Street is the Neutral Bay Sports Club.

5. The development is permissible within Zone 2(c) under North Sydney LEP.

6. The development offers views to the south west towards Sydney Harbour.

7. The subject site is within the Kurraba Point and Cremorne Point Heritage Conservation Area under the LEP. Clause 39(1) of the LEP provides that a person shall not demolish a building within the conservation area except with the consent of the council. Before granting consent to demolition, the council must take into consideration the extent to which the demolition would effect the heritage significance of the conservation area and be satisfied in a number of respects specified by cl 39(3) in respect of the proposed building and whether any stylistic, horticultural or archaeological features of the building to be demolished should be retained.
8. The council shall not consent to development which, in its opinion, is inconsistent with the objectives of the zone which are as follows:-

(a) to permit a form of development which is compatible with the scale and character of the existing locality; and
(b) to allow non-residential uses which are compatible with the character and scale of medium density housing.

9. Furthermore, pursuant to cl 14A(1)(b) of the LEP, a residential flat building shall not be erected on land in the zone if well-founded objections, in the opinion of the council, have been raised by persons likely to be affected by the proposed building. The Chief…

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: [1999] NSWLEC 229
Decision Date: 10/06/1999

CaseChat Overview and Summary

In Winten Developments Pty Ltd v North Sydney Council, the Land and Environment Court of New South Wales considered an application for development consent by Winten Developments Pty Ltd to demolish four existing houses and construct a residential flat building in their place. The primary legal issues revolved around the meaning of "well-founded objection" under the Local Environment Plan (LEP), compliance with the building height plane, and the adequacy of landscaping in the conservation area. The Court found that the objections raised by residents were well-founded due to significant view loss, which alone barred the approval of the residential flat building. Additionally, the proposed building exceeded the allowable height and did not comply with the building height plane, further justifying the refusal of consent. The Court also noted concerns about the building's bulk and its potential impact on the heritage conservation area. Ultimately, the Court dismissed the appeal and refused the development consent.

Orders