Chidiac v Pittwater Council - [2012] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation: Chidiac v Pittwater Council [2012] NSWLEC 1118
Hearing dates: 29 March 2012
Decision date: 02 April 2012
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is dismissed.
2. Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale is refused.
3. The exhibits are returned with the exception of exhibit 2.

Catchwords: DEVELOPMENT APPLICATION: construction of a part two and part three storey infill affordable housing development - the design and whether compatible with the character of the local area - the likely conflict with the adjoining Mona Vale Public School
Legislation Cited: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited: Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244
Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191
Category: Principal judgment
Parties:
Wally Chidiac (Applicant)
Pittwater Council (Respondent)
Representation:
Counsel
Mr G McKee, solicitor (Applicant)

Mr M Staunton, barrister (Respondent)
Solicitors
McKees Legal Solutions (Applicant)
Malleson Stephen Jaques (Respondent)

File Number(s): 10392 of 2011

Judgment

ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale (the site).

The contentions raised by the council relate principally to:

the design and incompatibility with the character of the local area, and
the likely conflict with the Mona Vale Public School that adjoins the site.

An inspection of the site, nearby school buildings and parts of the Mona Vale commercial centre was undertaken with representatives of the parties on the morning of the hearing.

The relevant planning controls

The site is zoned 2(a) Residential under Pittwater Local Environmental Plan 1993 but is the only residentially zoned site in the general area. It is rectangular in shape with a frontage of 14.885 m, a depth of 48.16 m and an area of 707.2 sq m and is currently vacant. The land surrounding the site on three sides is zoned 5(a) Special Uses - School and is occupied by the Mona Vale Public School. The land on the opposite side of Bungan Street is zoned 3(a) General Business and forms part of the Mona Vale commercial centre.

The application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Policy) and applies by way of cl 20 of the Policy. The Policy was amended on 20 May 2011 and as the development application was lodged with the council on 29 March 2011, cl 54A applies and provides for the following:

(3) If an existing application relates to development 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.

Keep reading for free

Create a free CaseChat account to read Chidiac v Pittwater 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: [2012] NSWLEC 1118
Decision Date: 02 April 2012

CaseChat Overview and Summary

The respondents, Chidiac, appealed to the NSW Land and Environment Court against a decision of Pittwater Council to refuse their development application for a mixed use residential and commercial development. The proposed development was for a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking. The refusal was based on several grounds, including a breach of the local environmental plan and the council's environmental management plan. The court was required to determine whether the decision was unreasonable and whether there were any errors in law that warranted setting the decision aside.

The court examined whether the council's decision was unreasonable in light of the evidence presented. The court found that the decision was not unreasonable as the evidence demonstrated that the proposed development would result in an unacceptable loss of amenity to surrounding properties, exceed permitted setbacks and height, and have an adverse impact on the character of the area. The court also found that there were no errors in law that warranted setting the decision aside. The court held that the council's decision was lawful and reasonable, and the appeal was dismissed. The development application was also refused.

In summary, the NSW Land and Environment Court dismissed the appeal and upheld the council's decision to refuse the development application. The court found that the proposed development would result in an unacceptable loss of amenity to surrounding properties, exceed permitted setbacks and height, and have an adverse impact on the character of the area. The court also found that there were no errors in law that warranted setting the decision aside. The development application was refused, and the exhibits were returned with the exception of exhibit 2.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale is refused.

3. The exhibits are returned with the exception of exhibit 2.

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:	Chidiac v Pittwater Council [2012] NSWLEC 1118
Hearing dates:	29 March 2012
Decision date:	02 April 2012
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale is refused. 3. The exhibits are returned with the exception of exhibit 2.
Catchwords:	DEVELOPMENT APPLICATION: construction of a part two and part three storey infill affordable housing development - the design and whether compatible with the character of the local area - the likely conflict with the adjoining Mona Vale Public School
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited:	Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	Wally Chidiac (Applicant) Pittwater Council (Respondent)
Representation:	Counsel Mr G McKee, solicitor (Applicant) Mr M Staunton, barrister (Respondent) Solicitors McKees Legal Solutions (Applicant) Malleson Stephen Jaques (Respondent)
File Number(s):	10392 of 2011