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Policy (Housing) 2021, ss 144, 145, 147, 148; Ch 4; Sch 9 State Environmental Planning Policy (Infrastructure) 2007 (repealed) State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental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 of Intended Effect, 'Crows Nest Transport Oriented Development Precinct' (July 2024) NSW Department of Planning, Industry and Environment, St Leonards and Crows Nest 2036 Plan (August 2020) Category: Principal judgment Parties: PDS Engineering Division Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Wright SC with D Harker (Applicant) M Henry SC with S Berveling (Respondent)