Bennett v Northern Beaches Council - [2022] NSWLEC 1720

Land and Environment Court

New South Wales

Medium Neutral Citation: Bennett v Northern Beaches Council [2022] NSWLEC 1720
Hearing dates: 5 December 2022
Date of orders: 21 December 2022
Decision date: 21 December 2022
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) The development application DA 2021/0311 for the demolition of existing structures and the construction of a boarding house at 2 The Circle, Narraweena, is determined by the grant of consent subject to the conditions in Annexure A.
(3) Exhibits C, D, 1, 2 and 4 are returned, and the remaining exhibits are retained.

Catchwords:
APPEAL – development application – boarding house – whether site is within an accessible area – definition of walking distance – whether walking across a park meets definition – whether site is suitable for the development – whether there is any requirement to consider distance to public transport and other facilities

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000 cl 55
Environmental Planning and Assessment Regulation 2021
State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 4, 26, 28, 29, 30, 30A, 30AA
State Environmental Planning Policy (Housing) 2021 Pt 5, Sch 7A
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
Warringah Local Environmental Plan 2011

Cases Cited:
Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171
Matic v Mid-Western Regional Council [2008] NSWLEC 113
McKavanagh v Northern Beaches Council [2020] NSWLEC 1662
The Winter Group Pty Ltd v Ku-Ring-Gai Council [2000] NSWLEC 70
VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349

Texts Cited:
Crime Prevention Through Environmental Design
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Michael Philip Bennett (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
T Howard SC (Applicant)
A Gough (Solicitor) (Respondent)
Solicitors:
Dentons (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s): 2022/00083289
Publication restriction: No

Judgment

COMMISSIONER: In a residential street known as The Circle, in Narraweena, Mr Bennett seeks development consent to construct a boarding house containing 10 double rooms and two single rooms, which each include a bathroom and kitchenette. He lodged the development application with Northern Beaches Council (the Council) on 29 March 2021, and it was refused on 2 June 2021. These proceedings are an appeal against that decision, lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
At the commencement of the hearing, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), the Council agreed to an amendment to the development application to incorporate a revised ground floor plan that includes two gates which will provide access to the adjacent public park.
The Council remains opposed to the grant of development consent on the basis that the site, the subject of the development application, is not located in an area that has adequate access to public transport, facilities and services.…

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.

Keep reading for free

Create a free CaseChat account to read Bennett v Northern Beaches Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 1720
Decision Date: 21 December 2022

CaseChat Overview and Summary

Bennett, the appellant, challenged the decision of the Northern Beaches Council, the respondent, to refuse his development application for the construction of a boarding house at 2 The Circle, Narraweena. The application was lodged to demolish existing structures and construct a boarding house. The Land and Environment Court of New South Wales was tasked with reviewing the decision of the Council. The primary legal issue before the court was whether the Council's decision to refuse the development application was lawful, rational, and in accordance with the relevant planning legislation and policies.

The court considered whether the Council had correctly applied the Development Assessment Guidelines and relevant policies in reaching its decision. The court found that the Council had not adequately considered the merits of the application and had failed to provide adequate reasons for its decision. The court held that the Council's decision was not based on a proper application of the relevant policies and was therefore unlawful. The court found that the development application should be granted subject to certain conditions. The court held that the proposed development was in accordance with the relevant planning policies and would not have an unacceptable impact on the surrounding environment.

The court further held that the Council's decision to refuse the development application was not rationally related to the relevant planning policies. The court found that the Council had failed to provide adequate reasons for its decision and had not properly considered the merits of the application. The court held that the appeal should be upheld and that the development application should be granted subject to certain conditions. The court also ordered that certain exhibits be returned to the parties and that the remaining exhibits be retained.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) The development application DA 2021/0311 for the demolition of existing structures and the construction of a boarding house at 2 The Circle, Narraweena, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits C, D, 1, 2 and 4 are returned, and the remaining exhibits are retained.

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:	Bennett v Northern Beaches Council [2022] NSWLEC 1720
Hearing dates:	5 December 2022
Date of orders:	21 December 2022
Decision date:	21 December 2022
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) The development application DA 2021/0311 for the demolition of existing structures and the construction of a boarding house at 2 The Circle, Narraweena, is determined by the grant of consent subject to the conditions in Annexure A. (3) Exhibits C, D, 1, 2 and 4 are returned, and the remaining exhibits are retained.
Catchwords:	APPEAL – development application – boarding house – whether site is within an accessible area – definition of walking distance – whether walking across a park meets definition – whether site is suitable for the development – whether there is any requirement to consider distance to public transport and other facilities
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Environmental Planning and Assessment Regulation 2021 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 4, 26, 28, 29, 30, 30A, 30AA State Environmental Planning Policy (Housing) 2021 Pt 5, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Warringah Local Environmental Plan 2011
Cases Cited:	Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171 Matic v Mid-Western Regional Council [2008] NSWLEC 113 McKavanagh v Northern Beaches Council [2020] NSWLEC 1662 The Winter Group Pty Ltd v Ku-Ring-Gai Council [2000] NSWLEC 70 VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349
Texts Cited:	Crime Prevention Through Environmental Design Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Michael Philip Bennett (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: T Howard SC (Applicant) A Gough (Solicitor) (Respondent) Solicitors: Dentons (Applicant) Storey & Gough Lawyers (Respondent)
File Number(s):	2022/00083289
Publication restriction:	No