Celik v Bayside Council - [2018] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation: Celik v Bayside Council [2018] NSWLEC 1124
Hearing dates: 1-2 March 2018
Date of orders: 05 March 2018
Decision date: 05 March 2018
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders:
1. The applicant is granted leave to rely on amended plans;
2. No order as to costs;
3. The objection pursuant to cl4.6 of the Rockdale Local Environmental Plan 2011 is not sustained;
4. The appeal is dismissed;
5. Development Application No 2017/286 for demolition of the existing one and two storey home and the construction of a four storey dual occupancy development and subdivision at 10 Lambert Road Bardwell Park is refused;
6. The exhibits are returned with the exception of Exhibit 1, A and R.

Catchwords: DEVELOPMENT APPEAL – dual occupancy development – height exceedance – variation to standard sought – steep land- vegetation removal – transition to adjoining zone – variation request not upheld.
Legislation Cited: Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190)
Future Space Pty Ltd v Kuring-gai Council [2009] NSWLEC 153
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties: Kenedi Celik (Applicant)
Bayside Council (Respondent)
Representation: Solicitors:
Mr Peter R Rigg (Applicant)
Mr John Cole, HWL Ebsworth (Respondent)

File Number(s): 2017/273603
Publication restriction: No

EX TEMPORE JUDGMENT

COMMISSIONER: This is a judgement in the matter of Celik v Bayside Council appeal number 2017/273603. This appeal was lodged against the deemed refusal by the Bayside Council of development application DA/286/2017. The application sought approval for demolition of the existing one and two storey dwelling house and the construction of a four storey attached dual occupancy. The development is proposed at 10 Lambert Road, Bardwell Park.
The appeal was subject to mandatory conciliation on 1 March 2018 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s34AA(2)(b)(ii) LEC Act).
In hearing the appeal the role of the Court (cl 39 LEC Act) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.
The issues for the Court to determine are:

whether the applicant’s requested variation to the maximum height control is worthy of support; and

whether following an assessment of the merits of the application it warrants approval.

Public Submissions

The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the Rockdale Development Control Plan 2011 (DCP 2011). Concerns raised in these submissions can be summarised as follows:

Overdevelopment and unsuitable development on site

Tree removal

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: [2018] NSWLEC 1124
Decision Date: 05 March 2018

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the matter of Celik v Bayside Council was heard. The applicant sought to amend their development application to allow for the demolition of an existing residential property and the construction of a four storey dual occupancy building. The Council raised an objection to the application, asserting that it contravened zoning provisions and would result in an unacceptable impact on neighbouring properties. The applicant subsequently sought leave to amend their plans to address the Council's concerns.

The court had to determine whether the applicant was entitled to rely on amended plans and whether the amended development application complied with relevant planning provisions. The Council argued that the amended plans still contravened zoning provisions and would have an unacceptable impact on neighbouring properties. The applicant submitted that the amended plans were in compliance with the relevant planning instruments and would not result in an unacceptable impact on neighbouring properties.

The court found that the applicant was entitled to rely on the amended plans as they addressed the Council's concerns and were consistent with the relevant planning provisions. However, the court also found that the amended development application contravened zoning provisions and would result in an unacceptable impact on neighbouring properties. The court noted that the proposed development would result in significant overshadowing and loss of privacy for neighbouring properties, which could not be mitigated by the amended plans. The court dismissed the appeal and refused the development application.

The court's orders included granting the applicant leave to rely on amended plans, dismissing the appeal, and refusing the development application. The court did not make any order as to costs and found that the Council's objection was not sustained. The exhibits were returned with the exception of Exhibit 1, A and R.

Orders

Orders of the court

The Court orders:

1. The applicant is granted leave to rely on amended plans;

2. No order as to costs;

3. The objection pursuant to cl4.6 of the Rockdale Local Environmental Plan 2011 is not sustained;

4. The appeal is dismissed;

5. Development Application No 2017/286 for demolition of the existing one and two storey home and the construction of a four storey dual occupancy development and subdivision at 10 Lambert Road Bardwell Park is refused;

6. The exhibits are returned with the exception of Exhibit 1, A and R.

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:	Celik v Bayside Council [2018] NSWLEC 1124
Hearing dates:	1-2 March 2018
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The objection pursuant to cl4.6 of the Rockdale Local Environmental Plan 2011 is not sustained; 4. The appeal is dismissed; 5. Development Application No 2017/286 for demolition of the existing one and two storey home and the construction of a four storey dual occupancy development and subdivision at 10 Lambert Road Bardwell Park is refused; 6. The exhibits are returned with the exception of Exhibit 1, A and R.
Catchwords:	DEVELOPMENT APPEAL – dual occupancy development – height exceedance – variation to standard sought – steep land- vegetation removal – transition to adjoining zone – variation request not upheld.
Legislation Cited:	Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) Future Space Pty Ltd v Kuring-gai Council [2009] NSWLEC 153 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Kenedi Celik (Applicant) Bayside Council (Respondent)
Representation:	Solicitors: Mr Peter R Rigg (Applicant) Mr John Cole, HWL Ebsworth (Respondent)
File Number(s):	2017/273603
Publication restriction:	No