MPN Nominees Pty Limited v North Sydney Council [2004] NSWLEC 604

Land and Environment Court of New South Wales

CITATION : MPN Nominees Pty Limited v North Sydney Council [2004] NSWLEC 604 APPLICANT: PARTIES : MPN Nominees Pty Limited RESPONDENT: North Sydney Council FILE NUMBER(S) : 10781 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Trunk stormwater pipeline LEGISLATION CITED: North Sydney Local Environmental Plan 2001 (NSLEP) - Environmental Planning and Assessment Act 1979, ss 79C, 96 CASES CITED: DATES OF HEARING: 29/10/2004 EX TEMPORE 10/29/2004 JUDGMENT DATE :

APPLICANT: Mr J Webster, barrister instructed by Mr H Snow, solicitor SOLICITORS: Swaab Attorneys LEGAL REPRESENTATIVES: RESPONDENT: Ms E Duenow, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT: Appeal No: 10781 of 2004 15

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

29 October 2004

10781 of 2004 - MPN Nominees Pty Limited v North Sydney Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the North Sydney Council (the council) to refuse to modify a development consent in respect of a development application to demolish the existing buildings and to construct a two apartment building comprising thirty-five (35) dwelling units with car parking for forty-seven (47) vehicles at being known as Nos 21-31 Young Street & Nos 49-51 Belgrave Street, Cremorne. 2 In lieu of relocating the trunk stormwater pipeline that passes through the land the applicant now proposes to leave the pipeline in its existing position and to encase it in concrete where necessary. This modification, it is argued by the applicant would not change the capacity of the stormwater system that passes through the land. As a result of more accurately locating the trunk stormwater main, the applicant seeks to remove those deferred commencement conditions of the original consent that relate to the relocation of the stormwater main. A side issue is the deletion of a deferred commencement condition relating to landscaping plans and some other conditions. 3 I have concluded that the parties have addressed the stormwater drainage issues relating to the trunk pipeline that passes through the land and the Court may grant the consent orders that the parties have arrived at. The land 4 The land is described as Lots A and B, DP 415930, (Nos 23 and 21 Young Street), Lots B and D, DP557817, (No 25 Young Street), Lot 30, DP, 544430, (No 27 Young Street), Lot 1, DP 87218, (No 29 Young Street), Lot 1, DP 738864, (No 31 Young Street), Lot 1, DP 850085, (No 49 Belgrave Street), Lot 1, DP 89410, (No 51 Belgrave Street). 5 The land is situated on the northeastern corner of Young and Grosvenor Streets and extends through to Belgrave Street at Neutral Bay. It also has a frontage to Belgrave Lane. It has an area of some 2094.22m2. Relevant planning controls North Sydney Local Environmental Plan 2001, (NSLEP) 6 The land is within the Residential zone of the NSLEP and the proposal is permissible with consent. The modification application 7 By notice dated 19 August 2003 the council granted deferred commencement consent to Development Application No D 102/02 to demolish the existing dwelling houses and to erect two residential apartment buildings over common basement car parking. The applicant seeks to modify that development consent by deleting two of three deferred commencement conditions that address stormwater management and the other deferred commencement condition relating to landscaping. 8 The modification application, under s 96(2) of the Act, involves the following: 1. Deletion of Deferred Commencement Conditions Nos AA1, AA2 and AA3. 2. Correction of a typographical error in Condition C23, which refers to the properties to be included in the dilapidation survey. It is requested to correct the error by inserting No 35 Young Street and deleting the reference to No 53 Young Street. 3. Changes to the drawings as follows: Basement Level 1: · Basement floor foot print under Building B reduced in size by relocating the eastern wall by 6.2m towards west; · Redesign of the access ramp from oval to circular shape; · Access stairs relocated to the north-western corner; and · Rearrangement of car spaces and mechanical and service facilities. (Note: This level will now accommodate 12 residents car parking and 3 visitor parking instead of 11 residents parking and 4 visitors parking.) Basement Level 2: · Basement size reduced as above; · Redesign of access ramp as above; · Re adjustment of the lift and storage areas under Building A (drawings corrected); and · Rearrangement of car spaces and the provision of two storerooms. (Note: This level would now accommodate 12 residents parking and 3 visitors parking instead of 11 residents parking and 5 visitors parking). Basement Level 3: · Basement plan redesigned to be in line with the basements above; · New access stairs provided; · Rearrangement of car spaces, storage spaces and car wash bay; and · Drawings corrected for the location of the lifts. (Note: This level would now accommodate 15 residents parking and 2 visitors parking instead of 16 residents parking).