Modog Pty Limited v North Sydney Council [2018] NSWLEC 120

Land and Environment Court New South Wales

Medium Neutral Citation: Modog Pty Limited v North Sydney Council [2018] NSWLEC 120 Hearing dates: 23, 24 and 31 July and 8 August 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Class 1 Before: Moore J Decision: (1) The appeal is dismissed; (2) Development Application DA 333/17 for the demolition of an existing residential flat building and its replacement with a new residential flat building (including basement car-parking accessed by a car lift) at 40 Brightmore Street, Cremorne is determined by the refusal of development consent; and (3) The exhibits, other than Exhibits 12 and 13, are returned. Catchwords: DEVELOPMENT APPLICATION - residential flat building - prohibited use - reliance on existing use rights - non-derogation principles - applicability of non‑derogation principles to controls in a development control plan - merit assessment of proposed development on a first principles' qualitative basis without regard to numerical controls in the relevant local environmental plan, the Apartment Design Guide and the applicable development control plan - qualitative assessment of the proposed development having regard to the objectives of the development control plan but setting aside all consideration of numerical controls - significant unacceptable impacts would arise from the proposed development on apartments in an adjoining property - unacceptable internal amenity impacts if the development proposal was to be approved - proposed development inappropriate in a streetscape context - impact on significant tree unacceptable - proposed development not appropriate to be approved APPEAL - possible "amber light" approach - fall-back option advanced by applicant - assessment of fall‑back option - significant unacceptable impacts would remain on apartments in an adjoining property if the fall-back option was approved - unacceptable internal amenity impacts if the fall-back option was to be approved - proposed fall-back option inappropriate in a streetscape context - impact on significant tree would remain unacceptable - proposed fall-back option not appropriate to be approved - appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.67 and 8.7(1) Environmental Planning and Assessment Regulation 2000, cl 42 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy 65 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: ABAX Contracting Pty Limited v The Hills Shire Council [2016] NSWLEC 105 Ali v Liverpool City Council [2009] NSWLEC 1327 Haindl v Daisch [2011] NSWLEC 1145 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 Manzie v Willoughby City Council [1996] LEC 26 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting v Warringah [2004] NSWLEC 140 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Category: Principal judgment Parties: Modog Pty Limited (Applicant) North Sydney Council (Respondent) Representation: Counsel: Ms J Reid (Applicant) Mr T To (Respondent)