Case alert - Mackenzie Architects International Pty Ltd v North Sydney Council

Mackenzie Architects International Pty Ltd v North Sydney Council [2025] NSWLEC 1044

Summary

Sparke Helmore represented North Sydney Council in defence of an appeal by Mackenzie Architects International Pty Ltd (Applicant) against the Council’s deemed refusal of a development application.  The application sought consent for the demolition of an existing dwelling and the construction of a new 4-storey dual occupancy residential building on the Sydney Harbour foreshore in Kurraba Point.

Commissioner Horton found the Applicant’s plans were inadequate, particularly regarding earthworks and stormwater. The Commissioner upheld the Council’s opposition to the development application and dismissed the appeal, which was a win for the Council.

Case Note

On 18 October 2023, the Applicant lodged a development application for the demolition of an existing dwelling and the construction of a 4-storey dual occupancy, including a turntable and car hoist system, new access stairs and associated landscape works on the eastern side of Kurraba Road in Kurraba Point, overlooking Shell Cove, a northern inlet of Sydney Harbour.

On 20 December 2023, the Applicant appealed the deemed refusal of the development application in Class 1 of the Land and Environment Court. The proceedings were listed for a Section 34AA conciliation conference and hearing before Commissioner Horton.

The site is a battle-axe lot accessed by a shared driveway, with an eastern developable portion that steps down the steep natural slope to the foreshore of Shell Cove.

The Commissioner was concerned by the Applicant’s proposed earthworks, including the extensive excavation and removal of spoil. The site’s nature limited access for cranes or barges to remove construction waste, but although these were possible (and potentially more suitable), the Applicant’s construction management plan only proposed using trucks to remove waste. The Commissioner considered that overall, the Applicant’s proposal did not adequately account for earthworks.

Furthermore, the Commissioner found that stormwater runoff across the site’s driveway and western hardstand would be diverted into Shell Cove. Despite amended stormwater plans, the Commissioner was not satisfied that the development would not cause environmental harm, such as pollution or siltation of Shell Cove.

Given the site's challenges, the Commissioner considered the Applicant’s amended plans and materials failed “to adequately execute the burden expected of it” (at [18]). The Commissioner upheld the Council’s opposition and refused the appeal.