Bouchard v Waverley Council - [2019] NSWLEC 1449

Land and Environment Court

New South Wales

Medium Neutral Citation: Bouchard v Waverley Council [2019] NSWLEC 1449
Hearing dates: 12-13 September 2019
Date of orders: 20 September 2019
Decision date: 20 September 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1)   The appeal is dismissed.
(2)   Development Application No. 422/2018 for an additional level to an approved but not yet constructed two storey dwelling and studio, at 6 Ashley Street, Tamarama, is refused.
(3)   The exhibits, other than Exhibits 1, 3, A, E and F, are returned.

Catchwords: DEVELOPMENT APPLICATION – alterations and additions including an additional level to a development for which consent has been granted but has not yet been constructed – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards have not demonstrated that compliance with the development standards is unreasonable or unnecessary to justify the contravention.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 1996
Waverley Local Environmental Plan 2012
Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Bouchard v Waverley Council [2016] NSWLEC 1529
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Waverley Development Control Plan 2012
Category: Principal judgment
Parties: Justine Bouchard (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
N Eastman (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/7101
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 deemed refusal of Development Application No. 422/2018 for alterations and additions including an additional level to an approved but not yet constructed two-storey dwelling and studio (the proposal) at 6 Ashley Street, Tamarama (the site) by Waverley Council (the Council).
The appeal was subject to conciliation on 12 September 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.
Leave was granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on amended documentation (Exs A-F). The proposal was amended by reducing the extent of the additional level at the front and rear.
The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

The Council’s contentions can be summarised…

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: [2019] NSWLEC 1449
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the matter of Bouchard v Waverley Council, the applicant, Bouchard, sought to appeal against a decision of the Council to refuse an application for an additional level to an existing dwelling. The appeal was heard in the Land and Environment Court of New South Wales. The applicant sought an additional level to an approved but not yet constructed two storey dwelling and studio at 6 Ashley Street, Tamarama. The Waverley Council refused the application, citing concerns about the impact on the local environment and heritage values of the area.

The legal issues before the court included whether the applicant had standing to appeal the decision, whether the Council's decision was lawful, and whether the applicant's proposed development was consistent with the relevant planning instruments. The court considered whether the applicant had a sufficient interest in the land to have standing to appeal, and whether the Council's decision was based on relevant considerations and was not unreasonable. The court also examined whether the proposed development was consistent with the local environmental plan and heritage overlay, and whether it would have an unacceptable impact on the character of the area.

The court found that the applicant did have standing to appeal the decision. However, the court held that the Council's decision was lawful and not unreasonable, as it was based on relevant considerations and was consistent with the local environmental plan and heritage overlay. The court found that the proposed development would have an unacceptable impact on the character of the area, and therefore the appeal was dismissed. The court also refused the development application and ordered that certain exhibits be returned, except for those identified in the orders.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 422/2018 for an additional level to an approved but not yet constructed two storey dwelling and studio, at 6 Ashley Street, Tamarama, is refused.

(3) The exhibits, other than Exhibits 1, 3, A, E 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:	Bouchard v Waverley Council [2019] NSWLEC 1449
Hearing dates:	12-13 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 422/2018 for an additional level to an approved but not yet constructed two storey dwelling and studio, at 6 Ashley Street, Tamarama, is refused. (3) The exhibits, other than Exhibits 1, 3, A, E and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions including an additional level to a development for which consent has been granted but has not yet been constructed – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards have not demonstrated that compliance with the development standards is unreasonable or unnecessary to justify the contravention.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996 Waverley Local Environmental Plan 2012
Cases Cited:	Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Bouchard v Waverley Council [2016] NSWLEC 1529 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Justine Bouchard (Applicant) Waverley Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/7101
Publication restriction:	No