Significant Legal Advice Not Disclosed to Lane Cove Councillors

    By
    Jacky Barker
    -

    On Monday 20th June 2022 Lane Cove Council held an extraordinary general meeting to discuss a development application in the St Leonards South Precinct.

    A Development Application has been submitted for “The Audrey “ at 13 -19 Canberra Ave, St Leonards South. (DA 162/2021).

    The Notice of Motion has been submitted as East Ward Councillors were concerned the development application plans were not compliant with the St Leonards South Development Control Plans.  They are further concerned that the report prepared by the Lane Cove Council planning team approved the non-compliances.

    Notice of Motion

    The following notice of motion was passed:

    That the elected Council: –

    1. Notes that the Development Control Plan for Locality 8 St Leonards South Precinct (SLS DCP) was the subject of extensive community consultation and that the SLS DCP, as approved by Council on 19 October 2020, was refined to reflect the results of this consultation.
    2. Notes that the community had and continues to have an expectation that Council will, as stated in the report to Council of 19 October 2020, require Development Applications lodged for the St Leonards South Precinct to be constructed and completed to the specifications of the SLS DCP in order to qualify for LEP Incentive Height of Buildings and Floor Space Ratios bonus components.
    3. Notes that Area 5, being the site of DA 162/2021, is the first of 6 remaining contiguous sites that run along the east-west link that have not yet been the subject of a Development Application determination; and
    4. Has strong grounds for concerns that approval of DA 162/2021 with significant non-compliances with the SLS DCP will have a precedent effect in respect of Areas 6, 14, 15,16 and 17.
    5. Authorises the Mayor to make a submission to the Sydney North Planning Panel, in the name of the elected Council, in the terms of this resolution, such submission to:
      (a) request the Sydney North Planning Panel to refuse approval of DA 162/2021 in its current form and to require compliance with the specifications of the DCP, including setback from the east-west link, building separation, building depth, and building length; and
      (b) authorise a Councillor nominated by the elected Council to address the Panel determination hearing for DA 162/2021.

    Sydney North Planning Panel

    On 22 June 2022 Mayor Andrew Zbik spoke at the Sydney North Planning Panel and requested compliance with the DCP.

    During the Sydney North Planning Panel meeting Hyecorp (the developer) advised they had legal advice that the DCP requirements in relation to part storeys and setbacks did not apply to their development.  The Legal advice was dated 23 May 2022.   On the same day, a letter was sent to the Lane Cove Council General Manager outlining the legal advice.  The letter was not marked confidential.

    The letter included the following:

    “Appendix D – Legal Advice confirms that the storey height control in the DCP provision has no effect under Section 3.43(5) of the Environmental Planning and Assessment Act 1979. Refer to legal advice for more detail.”

    The existence of the Legal advice was referred to in an annexure published on the SNPP website.  Any privilege associated with this legal advice was waived because the contents of the legal advice were in the public domain.  It was also uploaded to the SNPP website before the EGM, which means it was in the public domain and at this stage councillors should have been advised that there were issues with the DCP.

    The following questions need to be asked:

    • Why did the Lane Cove Council staff not advise councillors that Hyecorp had legal advice that the DCP was not enforceable in relation to the matters listed above?
    • Alternatively, why did the Lane Cove Council not seek their own legal advice on the DCP – the DCP was widely debated before it was implemented and it would be reasonable to believe that councillors would want compliance with the DCP.
    • Why did the Lane Cove Council staff not disclose the legal advice to councillors when the councillors called for an EGM to insist on compliance with the DCP?
    • Why did Lane Cove Council staff, knowing there could be issues with the enforceability of the DCP, immediately advise councillors so they could seek to rectify the issues?
    Section 335 (f) of the Local Government Act 1993 states:

    The general manager of a council has the following functions—

    (f)  to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions,

     

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