Cassar v Northern Beaches Council - [2024] NSWLEC 1171

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Cassar v Northern Beaches Council [2024] NSWLEC 1171
Hearing dates: 19 March 2024
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Northern Beaches Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application MOD2021/0983 made on 19 March 2024 to rely on the amended Plan of Management prepared by SJB dated 14 March 2024 (the amended modification application) and architectural plan DA04 prepared by RCA.
(2) The Appeal is upheld.
(3) Development Consent REV2021/0034 is modified in the terms in Annexure A.
(4) Development Consent REV2021/0034 as modified by the Court is Annexure B.

Catchwords:
MODIFICATION APPLICATION — whether the development is substantially the same – acoustic impacts – traffic impacts – weight given to public submissions

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.2, 8.9
Land and Environment Court Act 1979, s 39
Environmental Planning and Assessment Regulation 2021, s 113
Pittwater Local Environmental Plan 2014, cl 2.2

Cases Cited:
Arrange v Inner West Council [2019] NSWLEC 85
Bailey v Oberon Shire Council [2006] NSWLEC 815
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Texts Cited:
Pittwater 21 Development Control Plan 2004
RMS Guide to Traffic Generating Development, October 2002

Category: Principal judgment
Parties: Leslie Cassar (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
C Gough (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Storey & Gough (Respondent)

File Number(s): 2022/331015
Publication restriction: Nil

Judgment

COMMISSIONER: Whale Beach is located in the upper Northern Beaches, just south of Palm Beach, facing the great expanse of the Pacific Ocean. The terrain is steep, and roads leading to the beachfront are narrow and winding.
At the bottom of the slope is a roadway known as The Strand that runs parallel to the beachfront; lined with mature pines and partially obscured by wind-driven sand.
The sole means of vehicular access to The Strand is via Surf Road which connects Whale Beach Road further up the slope.
An existing mixed use development stands on a site that has frontages to both Whale Beach Road and Surf Road, known as 231 Whale Beach Road.
On 6 May 2020, the owner of that land, being the Applicant in these proceedings, lodged Development Application No DA2020/0442 seeking consent for demolition of existing structures and the construction of shop top housing development, including a café/restaurant on the ground floor, and basement parking for 21 vehicles.
Development consent for that proposal was refused, and the Applicant sought a review of the development application (the Review Application) under s 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act).
Subsequent to the refusal,…

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: [2024] NSWLEC 1171
Decision Date: 11 April 2024

CaseChat Overview and Summary

The case of Cassar v Northern Beaches Council involves the applicant, Cassar, who filed an appeal against a decision of the Northern Beaches Council. The central issue was whether the council's decision to deny an amendment to a modification application for development consent should be upheld. The application in question sought to amend the original development consent to include a new plan of management and an architectural plan. The dispute was heard and determined by the Land and Environment Court of New South Wales.

The legal issues that the Court was required to decide included whether the amended plans complied with the relevant statutory requirements and whether the council's decision was lawful, rational, and based on relevant considerations. The Court also needed to determine whether the applicant had demonstrated a reasonable basis for the amendment and whether the refusal of the amendment was justified. The Court had to consider the statutory framework governing development consents, including the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2021.

The Court, in its judgment, found that the applicant had demonstrated a reasonable basis for the amendment to the development consent. The amended plans complied with the statutory requirements and were consistent with the objectives of the relevant planning instruments. The Court held that the council's decision to refuse the amendment was not based on relevant considerations and was therefore unlawful. The Court further found that the amendment was necessary to ensure the development proceeded in accordance with the approved plans and to avoid unnecessary delays and costs. Consequently, the Court allowed the appeal and ordered the council to approve the amended modification application. The Court also modified the development consent in accordance with the amended plans and set out the modified consent in an annexure to the judgment.

Orders

Orders of the court

The Court orders that:

(1) Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Northern Beaches Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application MOD2021/0983 made on 19 March 2024 to rely on the amended Plan of Management prepared by SJB dated 14 March 2024 (the amended modification application) and architectural plan DA04 prepared by RCA.

(2) The Appeal is upheld.

(3) Development Consent REV2021/0034 is modified in the terms in Annexure A.

(4) Development Consent REV2021/0034 as modified by the Court is Annexure B.

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:	Cassar v Northern Beaches Council [2024] NSWLEC 1171
Hearing dates:	19 March 2024
Date of orders:	11 April 2024
Decision date:	11 April 2024
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Northern Beaches Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application MOD2021/0983 made on 19 March 2024 to rely on the amended Plan of Management prepared by SJB dated 14 March 2024 (the amended modification application) and architectural plan DA04 prepared by RCA. (2) The Appeal is upheld. (3) Development Consent REV2021/0034 is modified in the terms in Annexure A. (4) Development Consent REV2021/0034 as modified by the Court is Annexure B.
Catchwords:	MODIFICATION APPLICATION — whether the development is substantially the same – acoustic impacts – traffic impacts – weight given to public submissions
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.2, 8.9 Land and Environment Court Act 1979, s 39 Environmental Planning and Assessment Regulation 2021, s 113 Pittwater Local Environmental Plan 2014, cl 2.2
Cases Cited:	Arrange v Inner West Council [2019] NSWLEC 85 Bailey v Oberon Shire Council [2006] NSWLEC 815 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
Texts Cited:	Pittwater 21 Development Control Plan 2004 RMS Guide to Traffic Generating Development, October 2002
Category:	Principal judgment
Parties:	Leslie Cassar (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: J Smith (Applicant) C Gough (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Storey & Gough (Respondent)
File Number(s):	2022/331015
Publication restriction:	Nil