Bhat v Hornsby Shire Council - [2023] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation: Bhat v Hornsby Shire Council [2023] NSWLEC 1424
Hearing dates: 20 July 2023
Date of orders: 8 August 2023
Decision date: 08 August 2023
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development application number DA/628/2022 seeking consent for the demolition of existing structures, Torrens title subdivision of the existing single allotment into two Torrens title allotments and the construction of a new dwelling on each of the proposed lots on the land at 82 Boronia Place, Cheltenham (Lot 12 DP 16855) is determined by refusal of consent.
(3) The exhibits are returned with the exception of Exhibit 2, A, B and E.

Catchwords:
DEVELOPMENT APPLICATION – demolition and proposed Torrens title subdivision – whether the request to vary the lot size should be upheld – whether there are sufficient environmental planning grounds to justify the variation sought – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.3, 1.5, 4.15, 8.7
Hornsby Local Environmental Plan 2013, cll 4.1, 4.6, 6.6, Sch 5
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy No 1—Development Standards 1980

Cases Cited:
Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61
Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121
RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:
Hornsby Development Control Plan 2013

Category: Principal judgment
Parties: Seetharam Bhat (Applicant)
Hornsby Shire Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Law Group

File Number(s): 2022/322930
Publication restriction: No

Judgment

COMMISSIONER: The Applicant, Seetharam Bhat is the owner of the land known as 82 Boronia Place, Cheltenham (Lot 12 DP 16855). The development application, DA 628/2022 seeks consent to demolish the existing dwelling, subdivide the existing single allotment into two Torrens title lots and the construct a new dwelling on each new proposed lot. The Applicant appeals, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act), the refusal of their development application by Hornsby Shire Council (the Respondent).
In detail, the development application proposes the following:

Lot 1 in the proposed subdivision would have an area of 577.2m² and a 15.69m frontage to Boronia Place. The proposed dwelling on Lot 1 would contain an entry, guest, laundry, bathroom, an open plan kitchen, dining and family room, pantry, double garage, alfresco and terrace at the ground floor level and four bedrooms, two ensuites and a bathroom at the first floor level. The proposal includes the demolition of the existing dwelling and driveway on Lot 1 with a new driveway proposed towards…

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: [2023] NSWLEC 1424
Decision Date: 08 August 2023

CaseChat Overview and Summary

Bhat was the appellant and Hornsby Shire Council was the respondent in this case heard by the Land and Environment Court of New South Wales. The dispute centred around the refusal by the respondent to grant development consent for the appellant's proposed subdivision and construction of two new dwellings on a single allotment. Bhat sought review and appeal of the respondent’s decision, arguing that it was unreasonable and not in accordance with relevant planning policies and legislative requirements.

The court was required to determine whether the refusal of the development application was lawful, reasonable, and justified. This involved examining the merits of the appellant's arguments, including the compliance of the proposal with relevant planning policies, the Environmental Planning and Assessment Act 1979, and whether the decision-maker considered all appropriate matters. Additionally, the court assessed the weight and relevance of the evidence presented by both parties in reaching its decision.

The court found that the respondent's decision to refuse the development application was well-reasoned and supported by the evidence. The council considered relevant planning policies, the potential environmental impact, and the character of the area. The court upheld the decision, affirming that the refusal was not unreasonable and was in accordance with the applicable legislation and policies. Consequently, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development application number DA/628/2022 seeking consent for the demolition of existing structures, Torrens title subdivision of the existing single allotment into two Torrens title allotments and the construction of a new dwelling on each of the proposed lots on the land at 82 Boronia Place, Cheltenham (Lot 12 DP 16855) is determined by refusal of consent.

(3) The exhibits are returned with the exception of Exhibit 2, A, B and E.

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:	Bhat v Hornsby Shire Council [2023] NSWLEC 1424
Hearing dates:	20 July 2023
Date of orders:	8 August 2023
Decision date:	08 August 2023
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application number DA/628/2022 seeking consent for the demolition of existing structures, Torrens title subdivision of the existing single allotment into two Torrens title allotments and the construction of a new dwelling on each of the proposed lots on the land at 82 Boronia Place, Cheltenham (Lot 12 DP 16855) is determined by refusal of consent. (3) The exhibits are returned with the exception of Exhibit 2, A, B and E.
Catchwords:	DEVELOPMENT APPLICATION – demolition and proposed Torrens title subdivision – whether the request to vary the lot size should be upheld – whether there are sufficient environmental planning grounds to justify the variation sought – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.3, 1.5, 4.15, 8.7 Hornsby Local Environmental Plan 2013, cll 4.1, 4.6, 6.6, Sch 5 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 1—Development Standards 1980
Cases Cited:	Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121 RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130
Texts Cited:	Hornsby Development Control Plan 2013
Category:	Principal judgment
Parties:	Seetharam Bhat (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: J Smith (Applicant) A Seton (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group
File Number(s):	2022/322930
Publication restriction:	No