Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657

Land and Environment Court of New South Wales

Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

Delbant Pty Limited (Applicant) PARTIES : North Sydney Council (Respondent)

FILE NUMBER(S) : 10826 of 2005

CORAM: Preston CJ

Practice and Procedure :- Preliminary question in merit appeal - when appropriate. Words and Phrases - meaning of "existing ground level" in North Sydney Local Environment Plan 2001 KEY ISSUES: cl 6 Sch 2

Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 ; CASES CITED: Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch 605

DATES OF HEARING: 16 November 2005 EX TEMPORE JUDGMENT DATE : 11/16/2005

Applicant J A Ayling SC Pike Pike & Fenwick - Solicitors LEGAL REPRESENTATIVES:

Respondent C W McEwen SC Mallesons Stephen Jacques - Solicitors

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON J

Wednesday 16 November 2005

05/10826 DELBANT PTY LIMITED v NORTH SYDNEY COUNCIL

JUDGMENT – On preliminary question in class 1 proceedings and costs 1 HIS HONOUR: The matter before the Court today is a preliminary question in class 1 proceedings. The class 1 proceedings are an appeal against the refusal to grant development consent to a development application involving, inter alia, demolition of an existing tennis court and associated concrete slab structure and column supports and the erection of a new dwelling. 2 The tennis court occupies the western higher part of the site. The tennis court was erected in the mid 1980s and at its southeast corner is elevated on columns more than three metres above natural ground level.