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Brown v Waverley Council

Brown v Waverley Council

Case [2018] NSWLEC 1660 19 December 2018

Development Consent

Modification Application

Appeal

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Brown v Waverley Council [2018] NSWLEC 1660
Hearing dates: Conciliation on 22 November 2018; submissions received 3 and 11 December 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) Leave is granted to the applicant to amend the modification application in accordance with Drawing A7 Proposed Roof Terrace Plan Revision D dated 22 November 2018 and Drawing A11 East Elevation Revision D dated 22 November 2018.
(2) The appeal is upheld.
(3) The application to modify development consent No 116/2014 by the inclusion of new roof terraces to the approved dual occupancy at 7 Bulga Road, Dover Heights, is granted.
(4) Development consent No 116/2014 for the demolition of an existing dual occupancy and the construction of a new dual occupancy at 7 Bulga Road, Dover Heights is now subject to the consolidated, modified conditions of consent at Annexure A.
(5) The exhibits are returned, except for exhibits A and 3.

Catchwords: APPEAL – modification application – dual occupancy – application for roof terraces – whether visual and aural privacy impacts unreasonable – whether approval would create an undesirable precedent
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993
Waverley Local Environmental Plan 2012
Cases Cited: Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253
Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129
Chiefari v Waverley Council [2017] NSWLEC 1567
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Hunter’s Hill Council v Minister for Local Government [2016] NSWLEC 124
Robson v Tweed Council [2000] NSWLEC 170
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Super Studio v Waverley [2004] NSWLEC 91
Tenacity Consulting v Waringah [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited: Waverley Development Control Plan 2012
Waverley Development Control Plan 2012 Amendment No. 5
Waverley Development Control Plan 2012 Amendment No. 6
Category: Principal judgment
Parties: Matthew Brown (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
Solicitors:
Makinson d’Apice Lawyers (Applicant)
S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2018/136785
Publication restriction: No

Judgment

COMMISSIONER: On 10 September 2014, development consent was granted for the demolition of an existing dual occupancy and the construction of a new dual occupancy at 7 Bulga Road, Dover Heights. The proposed dwellings have a view corridor to the ocean to the northeast over Bulga Road, and, to a limited extent, to the east over existing dwellings. Mr Brown seeks to take advantage of that view by seeking approval for a modification to the consent, to allow him to add roof terraces to each of the dwellings that form part of the dual occupancy. His modification application seeking the same was refused by Waverley Council (“the Council”) on 2 November 2017. Pursuant to…

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.

Continue reading Brown v Waverley Council

Details

AGLC: Brown v Waverley Council [2018] NSWLEC 1660
Case: [2018] NSWLEC 1660
Decision Date: 19 December 2018

CaseChat Overview and Summary

The case of Brown v Waverley Council involves the applicant, Mr. Brown, appealing against the decision of the Council to refuse his application for modifications to the development consent. The modifications sought related to the inclusion of new roof terraces in his dual occupancy building located at 7 Bulga Road, Dover Heights. The case was heard by the Land and Environment Court of New South Wales. The legal issues before the Court included whether the modifications proposed by Mr. Brown were consistent with the relevant planning instruments and whether the Council's decision to refuse the modifications was lawful.

The Court considered the evidence presented and the applicable planning legislation and policies. The Court found that the proposed modifications were consistent with the planning instruments and that the Council's decision to refuse the modifications was not supported by the evidence. The Court held that the modifications would not have a significant adverse impact on the character of the area and would not undermine the planning controls. The Court also found that the modifications would provide significant benefits to Mr. Brown and would not have a significant adverse impact on the amenity of neighbouring properties.

The Court ordered that leave be granted to the applicant to amend the modification application. The Court also upheld the appeal and granted the application to modify the development consent. The Court found that the modifications proposed by Mr. Brown were consistent with the planning instruments and that the Council's decision to refuse the modifications was not supported by the evidence. The Court further ordered that the development consent be subject to the consolidated, modified conditions of consent set out in Annexure A. The exhibits were returned, except for exhibits A and 3.

Orders

Orders of the court

The Court orders that:

(1) Leave is granted to the applicant to amend the modification application in accordance with Drawing A7 Proposed Roof Terrace Plan Revision D dated 22 November 2018 and Drawing A11 East Elevation Revision D dated 22 November 2018.

(2) The appeal is upheld.

(3) The application to modify development consent No 116/2014 by the inclusion of new roof terraces to the approved dual occupancy at 7 Bulga Road, Dover Heights, is granted.

(4) Development consent No 116/2014 for the demolition of an existing dual occupancy and the construction of a new dual occupancy at 7 Bulga Road, Dover Heights is now subject to the consolidated, modified conditions of consent at Annexure A.

(5) The exhibits are returned, except for exhibits A and 3.

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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Citations

AGLC Citation

Brown v Waverley Council [2018] NSWLEC 1660

Most Recent Citation

Baronja Investments Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1133

Cases citing this decision · 2 of 2 shown

Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council
[2020] NSWLEC 1487 Para 31

…di concerns only the weight to be attributed to the draft DCP. [8] Whilst there are recent references to the Aldi judgment ( Brown v Waverley Council [2018] NSWLEC 1660 at [31] and [61]; ACN 603 361 940 Pty Limited v Northern Beaches Council [2019] NSWLEC 1012 at [51]-[53]), they did not follow Aldi .”…
Baronja Investments Pty Ltd v Woollahra Municipal Council
[2020] NSWLEC 1133 Para 1

…a consequence of s 4.15(3A)(a) of the EP&A Act. As previously observed by my colleague Commissioner Gray in the matters of Brown v Waverley Council [2018] NSWLEC 1660 (at [49]-[52]) and Jam Ventures Australia Pty Ltd v Inner West Council [2019] NSWLEC 1456 (at [54]), s 4.15(3A) does not strictly apply to a modificati…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Chiefari v Waverley Council
[2017] NSWLEC 1567 Para 27

…hat the word “adjacent” should be construed loosely as being “near to” or “in the neighbourhood of”. In Chiefari v Waverley Council [2017] NSWLEC 1567, Dixon C (as she then was) regarded the WDCP 2012 provision requiring developments containing a roof terrace to be contiguous as “ambiguous and arbitrary”, and that it…
Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local...
[2016] NSWLEC 124 Para 26

…cil relies on a number of decisions of the Court. The first is the decision of Moore J in Hunter’s Hill Council v Minister for Local Government [2016] NSWLEC 124, in which His Honour found (at [316-339]) that the word “contiguous”, in the context of local government areas and the Local Government Act 1993 , requires…
Alexakis Building Pty Ltd v Waverley Council
[2016] NSWLEC 1129 Para 27

…r of decisions of the Court do not support such a narrow interpretation of the word “contiguous”. In Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129, based on an earlier version of the WDCP 2012, O’Neill C accepted that the word “adjacent” should be construed loosely as being “near to” or “in the neig…
Aldi Foods Pty Limited v Holroyd City Council
[2004] NSWLEC 253 Para 28

…es in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the decision of Talbot J in Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253. In Aldi Foods v Holroyd City Council , Talbot J found as follows:…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 39

…ial apartments at 5 Bulga Road ensure that whilst visible, they will maintain a view sharing outcome consistent with Tenacity Consulting v Waringah [2004] NSWLEC 140.…
Super Studio v Waverley Council
[2004] NSWLEC 91 Para 18

…The header to cl 1.8 of Amendment No 5 requires consideration of the planning principle in Super Studio v Waverley [2004] NSWLEC 91, which provides at [5-7]:…
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995
[2002] NSWLEC 75 Para 61

…relies on the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]):…
Zhang v Canterbury City Council
[2001] NSWCA 167 Para 52

…less take a flexible approach to the application of the relevant provision under the WDCP 2012. The Council relies on Zhang v Canterbury City Council [2001] NSWCA 167, in which the Court of Appeal considered that whilst a development control plan is not an “environmental planning instrument”, a relevant provision i…
Stockland Development Pty Ltd v Manly Council
[2004] NSWLEC 472 Para 28

…12 Amendment No 6 should be considered in determining the application, it relies on the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the decision of Talbot J in Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253. In Aldi Foods v Holroyd City Council , Talbot J found…
Robson v Tweed Council
[2000] NSWLEC 170 Para 26

…areas and the Local Government Act 1993 , requires actual touching. In a decision with respect to permissibility in Robson v Tweed Council [2000] NSWLEC 170, Bignold J found that land was not contiguous with other land because it was separated “by the substantial creek” (see [24]).…

Legislation cited in this decision · 3

Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Land and Environment Court Act 1979 (NSW)
1 mention (from Para 2)
Local Government Act 1993 (TAS)
1 mention (from Para 26)

Medium Neutral Citation:	Brown v Waverley Council [2018] NSWLEC 1660
Hearing dates:	Conciliation on 22 November 2018; submissions received 3 and 11 December 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) Leave is granted to the applicant to amend the modification application in accordance with Drawing A7 Proposed Roof Terrace Plan Revision D dated 22 November 2018 and Drawing A11 East Elevation Revision D dated 22 November 2018. (2) The appeal is upheld. (3) The application to modify development consent No 116/2014 by the inclusion of new roof terraces to the approved dual occupancy at 7 Bulga Road, Dover Heights, is granted. (4) Development consent No 116/2014 for the demolition of an existing dual occupancy and the construction of a new dual occupancy at 7 Bulga Road, Dover Heights is now subject to the consolidated, modified conditions of consent at Annexure A. (5) The exhibits are returned, except for exhibits A and 3.
Catchwords:	APPEAL – modification application – dual occupancy – application for roof terraces – whether visual and aural privacy impacts unreasonable – whether approval would create an undesirable precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Waverley Local Environmental Plan 2012
Cases Cited:	Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253 Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129 Chiefari v Waverley Council [2017] NSWLEC 1567 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Hunter’s Hill Council v Minister for Local Government [2016] NSWLEC 124 Robson v Tweed Council [2000] NSWLEC 170 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Super Studio v Waverley [2004] NSWLEC 91 Tenacity Consulting v Waringah [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Waverley Development Control Plan 2012 Waverley Development Control Plan 2012 Amendment No. 5 Waverley Development Control Plan 2012 Amendment No. 6
Category:	Principal judgment
Parties:	Matthew Brown (Applicant) Waverley Council (Respondent)
Representation:	Counsel: J Reid (Applicant) Solicitors: Makinson d’Apice Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/136785
Publication restriction:	No