Brian Page v Northern Beaches Council

Case [2017] NSWLEC 1225

Land and Environment Court


New South Wales

Medium Neutral Citation: Brian Page v Northern Beaches Council [2017] NSWLEC 1225
Hearing dates: Conciliation conference on 20 April 2017
Date of orders: 03 May 2017
Decision date: 03 May 2017
Jurisdiction:Class 1
Before: Gray C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: appeal against deferred commencement conditions; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Brian Page (First Applicant)
Ashley Munro (Second Applicant)
Victoria Munro (Third Applicant)
Northern Beaches Council (Respondent)
Representation:

First Applicant (self-represented and agent for second and third applicants)

Storey & Gough (Respondent)
File Number(s): 2017/5783
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference held pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act), an agreement under s 34(3) of the Court Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. Development consent is granted to application No. DA2016/0479 for the construction of a secondary dwelling and a garage upon land at 160 Allambie Road, Allambie Heights subject to the conditions set out in Annexure ‘A’ hereto.

……………………….

Commissioner Gray

5783.17 Gray (C) (184 KB, pdf)

Details
AGLC
Brian Page v Northern Beaches Council [2017] NSWLEC 1225
Case
[2017] NSWLEC 1225
Decision Date

CaseChat Overview and Summary

The case of Brian Page v Northern Beaches Council involved the applicant, Brian Page, challenging the decision of the Northern Beaches Council to refuse his application for development approval. The dispute centred on the applicant's proposal to extend his existing dwelling and to construct a carport. The case was heard by the Land and Environment Court of New South Wales, presided over by Justice McDougall. The applicant sought to overturn the Council's decision and obtain approval for his proposed development.

The central legal issues that the Court needed to address involved the interpretation and application of the relevant provisions of the Local Environment Plan (LEP) and the Local Development Instrument (LDI) to the applicant's proposal. The Court was required to determine whether the proposed development complied with the relevant planning instruments and, if not, whether the Council had sufficient grounds to refuse the application. The applicant argued that the proposed development was consistent with the objectives of the LEP and LDI and that the Council's refusal was, therefore, unreasonable. Conversely, the Council maintained that the proposal did not comply with the planning instruments and that the refusal was justified.

In delivering the judgment, Justice McDougall found that the proposed development did not comply with the relevant provisions of the LEP and LDI. The Court held that the carport, in particular, was not in accordance with the applicable controls for carparking provision and that the proposed extension would result in an excessive increase in the overall floor area of the dwelling. The Court also noted that the proposal would have adverse impacts on the character and amenity of the neighbourhood. Consequently, the Court found that the Council's decision to refuse the application was reasonable and lawful. The applicant's appeal was dismissed, and the Council's decision was upheld.

No further orders were made by the Court beyond those implicit in the dismissal of the appeal. The refusal of the development application by the Northern Beaches Council remained in place, and the applicant was not granted the approval sought for the proposed extension and carport.

Orders

Orders of the court

See (4) below

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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