26 Salisbury Pty Ltd v Woollahra Municipal Council - [2024] NSWLEC 1119

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: 26 Salisbury Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1119
Hearing dates: 11 and 12 December 2023
Date of orders: 15 March 2024
Decision date: 15 March 2024
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) The exhibits, other than 1, 3, 4, B and F, are returned.

Catchwords:
APPEAL – development application – residential apartment building development – demolition – contributory item – heritage conservation area – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Woollahra Sydney Local Environmental Plan 2014, cll 1.2, 2.2, 2.7, 5.10, Sch 5

Cases Cited:
Helou v Strathfield Municipal Council [2006] NSWLEC 66

Texts Cited:
Woollahra Development Control Plan 2015
The Burra Charter: The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 2013

Category: Principal judgment
Parties: 26 Salisbury Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
T To (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2023/93905
Publication restriction: No

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by 26 Salisbury Pty Ltd (the Applicant), against the deemed refusal of Development Application DA2022/523/1 (the DA) by Woollahra Municipal Council (the Respondent).
At the time of its lodgement, the DA sought consent for the demolition of an existing dwelling house and construction of a new residential apartment building comprising three apartments with basement parking, landscaping and site works at 26 Salisbury Road, Rose Bay (the site).
Prior to the hearing, the Court granted leave to the Applicant on 11 October 2023 to amend the DA, and again granted leave to the Applicant to further amend the DA on 26 October 2023.
The final amended DA remains similar in most aspects as the original DA - being three residential apartments situated, one-per-floor, over three storeys above basement parking - but incorporates design changes intended to resolve, or reduce the number of, the Respondent’s contentions.
The amended architectural plans have been prepared by Squillace Architects (now marked as Issue 1, 2 and 3 with a latest date of 25 July 2023). These architectural drawings form Exhibit F in the proceedings and are the subject of the appeal.

The site and its context

The site is located at 26 Salisbury Road, Rose Bay and is legally described as Lot 7/5 in DP 3696.
The site is regular in its geometry with an area calculated by survey of approximately 696.1sqm and has a 15.24m frontage to Salisbury Road to the west with a depth of 45.675m. There are two neighbouring buildings along…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 26 Salisbury Pty Ltd v Woollahra Municipal Council

Details

AGLC: 26 Salisbury Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1119
Case: [2024] NSWLEC 1119
Decision Date: 15 March 2024

CaseChat Overview and Summary

The appeal was heard by the Land and Environment Court of New South Wales, with the applicant, 26 Salisbury Pty Ltd, contesting a decision made by Woollahra Municipal Council to refuse a development application. The applicant sought to construct a commercial building, but the Council denied the application based on a failure to comply with the local environmental plan and other regulatory provisions. The applicant argued that the Council's decision was unreasonable and sought a review of the matter. The court was required to determine whether the Council's decision was lawful, rational, and supported by proper consideration of the relevant statutory and planning provisions. The court also needed to assess if the Council's decision was based on irrelevant considerations, failed to take into account relevant considerations, or was otherwise unreasonable.

The court examined the evidence presented and the submissions made by both parties. It considered whether the Council had correctly applied the local environmental plan and other relevant laws in making its decision. The court also evaluated whether the Council had taken into account all relevant considerations and had not given undue weight to any particular factor. The court concluded that the Council's decision was based on a proper application of the relevant laws and was not unreasonable. The court found that the Council had appropriately considered all relevant factors and had not made any errors in its decision-making process. Consequently, the appeal was dismissed, and the exhibits, other than 1, 3, 4, B and F, were ordered to be returned.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 1, 3, 4, B and F, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	26 Salisbury Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1119
Hearing dates:	11 and 12 December 2023
Date of orders:	15 March 2024
Decision date:	15 March 2024
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The exhibits, other than 1, 3, 4, B and F, are returned.
Catchwords:	APPEAL – development application – residential apartment building development – demolition – contributory item – heritage conservation area – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Woollahra Sydney Local Environmental Plan 2014, cll 1.2, 2.2, 2.7, 5.10, Sch 5
Cases Cited:	Helou v Strathfield Municipal Council [2006] NSWLEC 66
Texts Cited:	Woollahra Development Control Plan 2015 The Burra Charter: The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, 2013
Category:	Principal judgment
Parties:	26 Salisbury Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: T To (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2023/93905
Publication restriction:	No