Bowen v Willoughby City Council - [2001] NSWLEC 274

Land and Environment Court

of New South Wales

CITATION: Bowen v Willoughby City Council [2001] NSWLEC 274

PARTIES:
APPLICANTS:
Bowen
RESPONDENT:
Willoughby City Council

FILE NUMBER(S): 10064 of 2000

CORAM: Bignold J

KEY ISSUES: Development Application :- Development appeal - SEPP No 1 objection to foreshore building line created by LEP-whether development absolutely prohibited.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
SEPP No 1-Development Standards

CASES CITED: Bowen v Minister for Urban Affairs (1996) 90 LGERA 368;
Bowen v Willoughby City Council (2000) 108 LGERA 149;
Strathfield Municipal Council v Poynting (2001) NSWCA 270;
Willoughby City Council v Bowen (1996) 92 LGERA 410

DATES OF HEARING: 29-31 May 2001, 1-5 June 2001, 8 June 2001, 6 July 2001

DATE OF JUDGMENT:
12/04/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr P Tomasetti, Barrister
SOLICITORS
Corrs Westgarth
RESPONDENT:
Mr B Preston SC with Mr J Robson, Barrister
SOLICITORS
Mallesons

JUDGMENT:

IN THE LAND AND

Matter No. 10064 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

4 December 2001

D AND L BOWEN

Applicants

WILLOUGHBY CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s deemed refusal of development consent to the Applicants’ development application for the re-subdivision of land known as Nos 70-72 Sugarloaf Crescent Castlecrag, being lots 301 to 305 (inclusive) in Deposited Plan 13613 (the development site) into the same number of lots but having different shapes and sizes from the existing five lots. Annexed hereto and marked “A” is a plan showing the existing five lots.

2. As will presently appear, the Council subsequently determined the development application by refusing development consent.

3. Since the proceedings were commenced on 28 January 2000, they have given rise to an unusually large number of interlocutory actions which explain how it came about that hearing of the appeal was unusually delayed. As these interlocutory actions bear upon the issues requiring adjudication, I must refer to them in some detail.

4. On 14 March 2000, the Council raised the following two discrete preliminary questions of law in its Statement of Issues (which also raised a considerable number of planning merit issues):—

1. Whether the proposed development is prohibited by cl 16 of the Willoughby Local Environmental Plan 1995 on the basis that the foreshore building line provisions in cl 16 are not development standards which can be varied by operation of the

2. Whether the development consent must be refused by operation of s 80(2) of the Environmental Planning and Assessment Act, on the basis that the construction of the driveway and erection of dwelling houses on the lots to be created by the subdivision would be contrary to cl 16 of Willoughby Local Environmental Plan 1995.

5. Following the hearing on these legal questions on 6 April 2000, I delivered judgment answering each question in the negative: see Bowen…

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: [2001] NSWLEC 274
Decision Date: 12/04/2001

CaseChat Overview and Summary

Bowen v Willoughby City Council is an appeal against the refusal of development consent for a re-subdivision of land in Castlecrag. The applicants sought to re-subdivide five lots into five lots of different shapes and sizes. The respondents, Willoughby City Council, refused development consent on various grounds. The applicants appealed to the Land and Environment Court of New South Wales, which heard the appeal over a number of hearings. The court found that development of the three rear lots by the erection of a dwelling-house on each lot was absolutely prohibited by the Local Environment Plan. The court also found that the applicants' objection to the foreshore building line pursuant to State Environmental Planning Policy No 1 was not well founded. The court found that granting development consent would not be in the public interest. The appeal was dismissed, and development consent was refused. The exhibits were ordered to be returned, and no order was made as to costs.

Orders