Misho & Associates Pty Ltd v Waverley Council

CITATION : Misho & Associates Pty Ltd v Waverley Council [2005] NSWLEC 93

Tenacity Consulting v Warringah Council [2004] NSWLEC 140; CASES CITED: PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 14

6. Just the same as the Court is not compelled to accept the Court Appointed Expert's opinion on detailed matters, likewise the council is not. In this regard I refer to the principle that was dealt with by His Honour Talbot J in PDP (Darlinghurst Apartments) Pty Ltd. v City of Sydney Council [2005] NSWLEC 14 at par 31. His Honour considered changes to the proposed design suggested by the Court Appointed Expert witness. He said: The Court has no way of knowing whether the criticism of the treatment of the façade would be a widely accepted professional view. Furthermore, the language and context of the DCP does not in my opinion mandate a design code which can be regarded as expressing a subjective specific detailed preference for the manner of presentation of development in the locality. Accordingly, unless the Court is convinced the changes proposed by the Court Appointed Expert are critical, as a matter of principle is not obliged to accept them entirely. Adopting and applying that principle to the present case, I do not think applying that principle in the present case, I think the council can reasonably expect to pursue the appeal to the ultimate, considering the substantive challenge to its FSR control and is not obliged to accept its planner's interpretation, or the Court Appointed Expert's opinion and agree to consent orders.