Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332

Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332

Clause 4.3 of NSLEP, read with cl 4.6, did not derogate from the incorporated provisions because it did not prevent the Applicant from making and having determined a development application relying on existing use rights. Since the Proposed Development exceeded the 8.5m height of buildings development standard,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 July 2020
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 65/19 / Principal Judgment After Hearing
Outcome
Appeal dismissed.
Legal Topics
['existing Use Rights' 'residential Flat Building' 'height of Buildings Development Standard' 'clause 4.6 Written Request' 'view Impacts' 'development Control Plan Compliance' 'bulk and Scale' 'zone Objectives']
['environmental Planning and Assessment' 'development Control' 'land and Environment Court Jurisdiction'] ['existing Use Rights' 'residential Flat Building' 'height of Buildings Development Standard' 'clause 4.6 Written Request' 'view Impacts' 'development Control Plan Compliance' 'bulk and Scale' 'zone Objectives']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 65/19 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether cl 4.3 of North Sydney Local Environmental Plan 2013 derogates from the incorporated provisions concerning existing use rights.' "If cl 4.3 does not derogate, whether the Applicant's cl 4.6 written request to vary the height of buildings development standard is well founded." "Whether the proposed residential flat building's height, bulk, scale and view impacts are acceptable on the merits if cl 4.3 derogates from the incorporated provisions." 'Whether the Proposed Development complies with relevant controls in North Sydney Development Control Plan 2013.']

Ratio Decidendi

Clause 4.3 of NSLEP, read with cl 4.6, did not derogate from the incorporated provisions because it did not prevent the Applicant from making and having determined a development application relying on existing use rights. Since the Proposed Development exceeded the 8.5m height of buildings development standard, consent required a well-founded cl 4.6 written request. The request was not well founded because it did not demonstrate that compliance with the height standard was unreasonable or unnecessary, did not provide sufficient environmental planning grounds focused on the height contravention, and did not demonstrate consistency with the R3 zone objectives or the public interest. The...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The exhibits are returned, with the exception of Exhibits A, G and 1.']