Ausling v Willoughby City Council - [2015] NSWLEC 1226

Land and Environment Court

New South Wales

Case Name:	Ausling v Willoughby City Council
Medium Neutral Citation:	[2015] NSWLEC 1226
Hearing Date(s):	18 and 19 June 2015
Date of Orders:	24 June 2015
Decision Date:	24 June 2015
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	1. Having, during the course of the proceedings, twice granted leave to the applicant to rely on further amended plans and it being the agreed position of the parties that these further amendments were not minor, pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs in the agreed sum of $1.00 (one dollar); 2. The appeal is dismissed; 3. Development Application 2013/544 for the demolition of the existing dwelling at 26 Kendall Road, Castle Cove, and the erection of a five apartment development pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is determined by the refusal of development consent; and 4. The exhibits, other than Exhibits 1, 10 and J, are returned.
Catchwords:	DEVERLOPMENT APPLICATION: solar access; floor space ratio exceedence; privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Willoughby Local Environmental Plan 2012
Cases Cited:	Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Manzie v Willoughby City Council [1996] NSWLEC 26 Super Studio v Waverley [2004] NSWLEC 91 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Damon Ausling (Applicant) Willoughby City Council Council (Respondent)
Representation:	Counsel: Mr G Green, solicitor (Applicant) Mr M Staunton, barrister (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	10848 of 2014
Publication Restriction:	No

Judgment

Introduction

SENIOR COMMISSIONER: Castle Cove is a long settled suburb that is currently undergoing a gradual transition. The transition is an evolutionary one arising as a consequence of elements of the existing housing stock reaching the end of their useful life and being replaced with new, more contemporary designed dwellings. In the vicinity of 26 Kendall Road (the site) there are already several comparatively recent examples of the effect of this transition.
The applicant seeks development consent to the demolition of the existing single dwelling on the site and its replacement with a five apartment development. Consent is sought using the beneficial and facultative effect of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP), a document discussed in more detail later.
The application was originally made to Willoughby City Council (the Council) on 13 December 2013 and it was refused by the Council on 11 August 2014. The applicant has appealed against that refusal.
During the course of the progress of the matter within the Court, a conciliation conference was held pursuant to s 34 of the Land and Environment Court Act 1979 but…

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.

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Details

Case: [2015] NSWLEC 1226
Decision Date: 24 June 2015

CaseChat Overview and Summary

In the case of Ausling v Willoughby City Council, the applicant sought to demolish an existing dwelling at 26 Kendall Road, Castle Cove, and erect a five apartment development, pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. The respondent, Willoughby City Council, refused the development consent. The applicant appealed the refusal to the Land and Environment Court of New South Wales.

The central legal issues before the court were whether the applicant was entitled to rely on further amended plans and, if so, whether these amendments constituted minor changes under section 97B(2) of the Environmental Planning and Assessment Act 1979, which would entitle the applicant to a refund of the development application fee. Additionally, the court needed to determine whether the applicant's development application should be approved.

The court held that the applicant was entitled to rely on further amended plans, as the amendments were not minor. However, the applicant was not entitled to a refund of the development application fee under section 97B(2) of the Act. The court found that the amendments were not minor because they substantially altered the proposed development. The court further concluded that the applicant's development application should be refused, as it did not comply with the relevant planning policies and would have an unacceptable impact on the character of the area.

The court dismissed the appeal and determined the development application. The exhibits, other than Exhibits 1, 10, and J, were returned. The applicant was also ordered to pay the respondent's costs in the sum of $1.00 (one dollar).

Orders

Orders of the court

1. Having, during the course of the proceedings, twice granted leave to the applicant to rely on further amended plans and it being the agreed position of the parties that these further amendments were not minor, pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs in the agreed sum of $1.00 (one dollar);

2. The appeal is dismissed;

3. Development Application 2013/544 for the demolition of the existing dwelling at 26 Kendall Road, Castle Cove, and the erection of a five apartment development pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is determined by the refusal of development consent; and

4. The exhibits, other than Exhibits 1, 10 and J, are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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