Arbib v Waverley Council - [2018] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation: Arbib v Waverley Council [2018] NSWLEC 1475
Hearing dates: 30-31 August 2018
Date of orders: 07 September 2018
Decision date: 07 September 2018
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused.
(3) The exhibits, other than exhibits 1 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing residential flat building including an additional level; contravention of the floor space ratio development standard; impact on views from nearby residential flat buildings; interpretation of the maximum external wall height control in the Waverley Development Control Plan 2012.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 2012
Cases Cited: Arnott v City of Sydney Council [2015] NSWLEC 1052
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action v Woollahra Municipal Council [2018] NSWLEC 118
Tenacity Consulting v Waringah [2004] NSWLEC 140
Wingecarribee v De Angelis [2016] NSWCA 189
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Waverley Development Control Plan 2012
Category: Principal judgment
Parties: David Arbib (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
P McEwen SC (Applicant)
Solicitors:
Bartier Perry (Applicant)
S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2017/283222
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 569/2016 for alterations and additions to an existing residential flat building to remove the existing pitched roof and add an additional level to the existing building and replace the existing garages with new garages (the proposal) at 19 Dellview Street, Tamarama (the site) by Waverley Council (the Council).
The appeal was subject to mandatory conciliation on 23 February 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 6 April 2018 for the applicant to rely on an amended proposal. Leave was unopposed and granted at the commencement of the hearing for the applicant to rely on a further amended proposal that incorporated changes to the proposal agreed upon by the planning experts (Exhibit A).

Issues

The Council’s contentions can be summarised as:

The proposal exceeds the floor space ratio (FSR) development standard for the site, which results in a building envelope that is inappropriate in its bulk and scale;

The excessive wall height of the proposal results in a development that is inappropriate in its bulk and scale and causes unacceptable adverse amenity impacts on neighbouring properties;

The proposal will have unacceptable impacts on the views obtained from neighbouring properties…

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 Arbib v Waverley Council

Details

AGLC: Arbib v Waverley Council [2018] NSWLEC 1475
Case: [2018] NSWLEC 1475
Decision Date: 07 September 2018

CaseChat Overview and Summary

In Arbib v Waverley Council, the applicant sought to appeal a decision of the respondent council to refuse approval of a development application for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama. The application was heard by the Land and Environment Court of New South Wales. The applicant's appeal was dismissed and the development application refused. The court ordered that the exhibits, other than exhibits 1 and A, be returned.

The primary legal issue before the court was whether the respondent council was correct in its decision to refuse the development application. The applicant contended that the decision was flawed as the council had failed to consider certain factors in its assessment, including the proposed alterations and additions, and their effect on the character and appearance of the building. The respondent council argued that the development application did not comply with the local environmental plan and was therefore properly refused.

The court found that the respondent council had appropriately exercised its discretion in refusing the development application. The court held that the council had considered all relevant factors in its assessment, including the proposed alterations and additions, and their effect on the character and appearance of the building. The court also held that the development application did not comply with the local environmental plan, which required that any alterations or additions to a residential flat building must not be detrimental to the character or appearance of the building. The court found that the proposed alterations and additions would have a detrimental effect on the character and appearance of the building, and therefore properly refused the development application.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused.

(3) The exhibits, other than exhibits 1 and A, 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Arbib v Waverley Council [2018] NSWLEC 1475
Hearing dates:	30-31 August 2018
Date of orders:	07 September 2018
Decision date:	07 September 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused. (3) The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing residential flat building including an additional level; contravention of the floor space ratio development standard; impact on views from nearby residential flat buildings; interpretation of the maximum external wall height control in the Waverley Development Control Plan 2012.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Arnott v City of Sydney Council [2015] NSWLEC 1052 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Tenacity Consulting v Waringah [2004] NSWLEC 140 Wingecarribee v De Angelis [2016] NSWCA 189 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	David Arbib (Applicant) Waverley Council (Respondent)
Representation:	Counsel: P McEwen SC (Applicant) Solicitors: Bartier Perry (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/283222
Publication restriction:	No