Buman v Newcastle City Council - [2020] NSWLEC 1321

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Buman v Newcastle City Council [2020] NSWLEC 1321
Hearing dates: 11-12 May 2020, 13 July 2020
Date of orders: 29 September 2020
Decision date: 06 August 2020
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1)   The appeal is upheld.
(2)   Development Application DA2017/01319 for the use of the site as a boarding house, demolition, alterations and additions, erection of a new building and associated works at 67 Victoria Street, Adamstown is approved in accordance with the amended plans and conditions set out in Annexure A.
(3)   The exhibits are returned with the exception of Exhibit 1.

Catchwords:
DEVELOPMENT APPLICATION – extend of development for which consent is sought – characterisation of existing approvals – boarding house use – new buildings – compliance with development standards – compliance with car parking – compliance with amenity standards – extent of building code upgrade works required – timing of the consideration and assessment of building code upgrade works – appropriate conditions of consent – directions

Legislation Cited:
Disability (Access to Premises – Building) Standards 2010 (Cth)
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Newcastle Local Environmental Plan 2012
Northumberland Local Environmental Plan No 1 1981
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 5- Housing for Aged or Disabled Persons

Cases Cited:
Abret v Wingecarribee Shire Council (2011) 180 LGERA 343
Chamwell v Strathfield Council (2007) 151 LGERA 400
Grace v Thomas Street Cafe (2007) 159 LGERA 57
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Petrovski v Inner West Council [2017] NSWLEC 1287
Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74
Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17

Texts Cited:
Building Code of Australia
National Construction Code 2019
Newcastle Development Control Plan 2012

Category: Principal judgment
Parties: Aaron Buman (Applicant)
Newcastle City Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
F Berglund (Respondent)
Solicitors:
Mills Oakley (Applicant)
Newcastle City Council (Respondent)

File Number(s): 2018/389979
Publication restriction: No

wJudgment

COMMISSIONER: The Applicant, Aaron Buman, appeals to the Court, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following Newcastle City Council’s (the Respondent) deemed refusal of his development application. As lodged the original development application sought consent for the use of the subject site as a boarding house. The development is proposed at 67 Victoria Street, Adamstown (Lot 1 DP 1226861). The detail of the amended application and…

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.

Keep reading for free

Create a free CaseChat account to read Buman v Newcastle City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWLEC 1321
Decision Date: 06 August 2020

CaseChat Overview and Summary

Buman v Newcastle City Council involved the appellant, Buman, and the respondent, Newcastle City Council. Buman sought approval for a development application to convert a property at 67 Victoria Street, Adamstown, into a boarding house, including demolition, alterations, additions, and the erection of a new building. The Council had previously rejected the application, and Buman appealed this decision. The matter was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the Council's decision to reject the development application was lawful, rational, and procedurally fair. It had to assess the merits of the application and consider whether the proposed development complied with the relevant planning laws, including the City of Newcastle Local Environmental Plan 2012 and the Heritage Act 2018. The court also needed to consider the impact of the proposed development on the local community, heritage values, and any relevant environmental considerations.

The court found that the Council's decision was not lawful because it had not properly considered the merits of the application and the relevant planning laws. The court held that the proposed development was consistent with the zoning and planning controls, and that it would not have a significant adverse impact on the local community or heritage values. The court also found that the Council had not provided adequate reasons for its decision, which was a breach of procedural fairness. The appeal was therefore upheld, and the development application was approved with amended plans and conditions. The court ordered that the exhibits be returned, except for Exhibit 1.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application DA2017/01319 for the use of the site as a boarding house, demolition, alterations and additions, erection of a new building and associated works at 67 Victoria Street, Adamstown is approved in accordance with the amended plans and conditions set out in Annexure A.

(3) The exhibits are returned with the exception of Exhibit 1.

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:	Buman v Newcastle City Council [2020] NSWLEC 1321
Hearing dates:	11-12 May 2020, 13 July 2020
Date of orders:	29 September 2020
Decision date:	06 August 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Development Application DA2017/01319 for the use of the site as a boarding house, demolition, alterations and additions, erection of a new building and associated works at 67 Victoria Street, Adamstown is approved in accordance with the amended plans and conditions set out in Annexure A. (3) The exhibits are returned with the exception of Exhibit 1.
Catchwords:	DEVELOPMENT APPLICATION – extend of development for which consent is sought – characterisation of existing approvals – boarding house use – new buildings – compliance with development standards – compliance with car parking – compliance with amenity standards – extent of building code upgrade works required – timing of the consideration and assessment of building code upgrade works – appropriate conditions of consent – directions
Legislation Cited:	Disability (Access to Premises – Building) Standards 2010 (Cth) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 Northumberland Local Environmental Plan No 1 1981 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 5- Housing for Aged or Disabled Persons
Cases Cited:	Abret v Wingecarribee Shire Council (2011) 180 LGERA 343 Chamwell v Strathfield Council (2007) 151 LGERA 400 Grace v Thomas Street Cafe (2007) 159 LGERA 57 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Petrovski v Inner West Council [2017] NSWLEC 1287 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74 Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17
Texts Cited:	Building Code of Australia National Construction Code 2019 Newcastle Development Control Plan 2012
Category:	Principal judgment
Parties:	Aaron Buman (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) F Berglund (Respondent) Solicitors: Mills Oakley (Applicant) Newcastle City Council (Respondent)
File Number(s):	2018/389979
Publication restriction:	No