Chisholm v Pittwater Council

Land and Environment Court

of New South Wales

CITATION:

Chisholm v Pittwater Council and Anor [2000] NSWLEC 143

PARTIES:

APPLICANT:
Samuel Chisholm

FIRST RESPONDENT:
Pittwater Council

SECOND RESPONDENT:
Willeroon Pty Ltd

FILE NUMBER(S):

40046 of 2000

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- whether decision manifestly unreasonable - whether irrelevant matters taken into account - procedural fairness - jurisdictional fact/precondition

LEGISLATION CITED:

Interpretation Act 1987 s 8
Pittwater Local Environmental Plan 1993 cl 32

CASES CITED:

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
Clifford and Anor v Wyong Shire Council (1996) 89 LGERA 240;
Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 106 LGERA 419;
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24;
Nashville Investments Pty Ltd v Gull Petroleum (WA) Pty Ltd and Ors (1998) 103 LGERA 1;
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355;
Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 102 LGERA 52

DATES OF HEARING:

29/05/2000, 30/05/2000, 31/05/2000, 01/06/2000, 02/06/2000

DATE OF JUDGMENT:

07/11/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley

FIRST RESPONDENT:
Mr R P Lancaster (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

SECOND RESPONDENT:
Mr P D McClellan QC with Mr A E Galasso (Barrister)
SOLICITORS:
Deacons Graham & James

JUDGMENT:

IN THE LAND AND Matter No. 40046 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 11 July, 2000

Samuel Chisholm
Applicant

v
Pittwater Council
First Respondent

Willeroon Pty Ltd

Second Respondent

REASONS FOR JUDGMENT


1. The building at No 35 Ocean Road, Palm Beach, known as “Willeroon”, is generally described as reminiscent of the “Californian Bungalow” style of dwelling. Built in 1923 by Clive Pemberton Curlewis, it has been the subject of a number of studies and is characterised by deep elevated verandahs, major gable forms in timber, sweeping roof forms, heavy masonry pylons or piers and an architectural focus on outdoor living. Willeroon was first listed as a building of heritage significance by the National Trust in 1979.

2. The second respondent, Willeroon Pty Ltd, is the owner of Willeroon. On 3 December 1998 the second respondent lodged a development application with the first respondent seeking consent to demolish the existing building and construct a three storey dwelling with associated carparking and a separate cabana structure closer to the Ocean Street frontage of the property. The application was last amended in September 1999.

3. On 13 December 1999 the council resolved to approve the development application.

4. The subject property is within zone 2(a) Residential “A” and 6(a) Existing Recreation “A” under Pittwater LEP 1993 (“the LEP”).

5. LEP Amendment No. 32, proclaimed in June 1999, updates the heritage provisions of the LEP and protects the heritage significance of properties fronting Ocean Road between Ocean Place and Hordern Park, Palm Beach including the subject property, by creating a heritage conservation…