Chan v Bayside Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chan v Bayside Council [2020] NSWLEC 1684

Hearing dates:

2-3 December 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application 2017/1152 for the construction of a three-storey building with a depot, office premises and a caretakers unit, and tree removal on Lot B DP 155707, also known as 5 Luland Street, Botany is refused.

(3) The exhibits, except for Exhibits 1, 3, 6, A and B are returned.

Catchwords:

DEVELOPMENT APPLICATION – depot - office and caretaker unit – permissibility of ancillary uses

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Standard Instrument – Principal Local Environmental Plan

State Environmental Planning Policy (Three Ports) 2013

Cases Cited:

Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

Shire of Perth v O'Keefe (1964) 110 CLR 529

Wym Pty Ltd v Sutherland Shire Council (1990) 69 LGRA 322

Texts Cited:

Botany Development Control Plan 2013

Land and Environment Court of New South Wales, ‘COVID-19 Pandemic Arrangements Policy’ (March 2020)

Merriam-Webster Dictionary (online version)

Category:

Principal judgment

Parties:

Kristie Chan (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
M Cottom (Applicant)
P Brown (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/88124

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 2017/1152 by Bayside Council (hereafter the Council), which as amended seeks the construction of a three storey building with a depot, office premises and a ‘caretakers’ unit, and tree removal on Lot B DP 155707, also known as 5 Luland Street, Botany (hereafter the site).

Background

2. The DA was lodged with Council on 7 September 2017, and subsequently notified to residents, with one (1) submission received in objection, citing issues relating to: accessibility; landscaping; amenity; parking; traffic; and ancillary nature of residential accommodation.

3. The applicant appealed against the deemed refusal of the DA with the Land and Environment Court (the Court), pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The parties agreed to proceed with the hearing of the appeal without a site view, and to rely on observations made by myself as the Commissioner of the (terminated) s34 conciliation held on 9 October 2019. The respondent advised the Court that one resident sought to make oral submission at the hearing, although he did not appear, and therefore the Court relies on the written submission tendered in evidence.

5. The approach taken by the Court in the hearing process is made with the agreement of the parties, consistent with the Court’s COVID-19 Pandemic Arrangements Policy. The parties consented to the hearing proceeding remotely using Microsoft Teams software.

6. Evidence before the Court in this hearing relies on amended plans, written and…