Premier 1 Estate Pty Ltd v North Sydney Council; and ; Premier 3 Estate Pty Ltd v North Sydney Council [2015] NSWLEC 1241

Land and Environment Court New South Wales

Medium Neutral Citation: Premier 1 Estate Pty Ltd v North Sydney Council; and ; Premier 3 Estate Pty Ltd v North Sydney Council [2015] NSWLEC 1241 Hearing dates: 23 and 24 April, 2015 Decision date: 01 July 2015 Jurisdiction: Class 1 Before: Smithson AC Decision: Appeals are upheld Catchwords: DEVELOPMENT APPLICATIONS – Residential flat buildings, adjoining appeals, shared basement car park, view impacts, bulk and scale, landscaping, transition zone Legislation Cited: Environmental Planning + Assessment Act 1979 North Sydney Local Environmental Plan 2013 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: Premier 1 Estate Pty Ltd and Premier 3 Estate Pty Ltd (Applicants) North Sydney Council (Respondent) Representation: Counsel: Mr C McKoewn (Applicant)

Solicitors: Gadens Lawyers (Applicant) Ms K Gerarthy – HWL Ebsworth (Respondent) File Number(s): 10461 of 2014 and 10724 of 2014

Judgment

Introduction 1. This judgment covers two appeals heard concurrently as they relate to development over two adjoining properties, No's 1 and 3 Premier Street, Neutral Bay, with related ownership and sharing a single vehicular crossover and basement car park and with common works occurring across the shared side boundary. 2. The appeals are against the refusal by North Sydney Council (the Council and the respondent) under section 97(1) of the Environmental Planning and Assessment Act 1979 of DA 21/2014 and DA 233/2014 for the demolition of existing structures and erection of residential flat buildings with underground parking over the two adjoining properties which comprise the subject site. 3. Specifically, the proposed development involves the construction of two residential flat buildings; one on each of the existing properties; containing, respectively, nine apartments over four to five levels at 1 Premier Street; and four apartments over four levels at 3 Premier Street. 4. The development involves excavation into the natural rock face in front of 3 Premier Street to provide a common single vehicular crossover to a shared basement car park with two levels of parking serving both of the proposed residential flat buildings. There is some minor encroachment of both buildings over their common side boundary and common works across the site. 5. During the hearing, and to address one of the contentions raised by the Council, the Court was provided with owners' consent for each property so that required works over both properties associated with any approved development could be undertaken. These works included construction and use of the common crossover and basement car park. 6. Counsel for the applicants also confirmed that the applicants wished for the Court to determine the application as one development rather than as individual developments and proposed amalgamation of the properties prior to construction as a deferred commencement condition to reinforce this. In this judgement reference to "the applicant" means both applicants. 7. Expert Planning evidence on merits issues was taken during the hearing as a single development, albeit the initial Development Applications were not lodged on this basis but were amended over time in response to Council and neighbour issues resulting in an integrated response to developing the adjoining properties as a single site.