Cjha Pty Ltd v Mid-Coast Council - [2021] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation: CJHA Pty Ltd v Mid-Coast Council [2021] NSWLEC 1539
Hearing dates: 6 September 2021
Date of orders: 29 September 2021
Decision date: 29 September 2021
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The Applicant’s written request to contravene the height of building standard at cl 4.3 of the Great Lakes Local Environmental Plan 2014, pursuant to cl 4.6 of the Great Lakes Local Environmental Plan 2014, is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No 283/2019 for consolidation of lots, residential flat building and 2 lot Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest, subject to conditions at Annexure A.
(4) All exhibits are returned, except for Exhibits A, B, C, D, E, 6 and 7.

Catchwords:
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – height of buildings – conditions of consent

Legislation Cited:
Architects Act 2003
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55
Great Lakes Local Environmental Plan 2014, cll 4.1, 4.1D, 4.3, 4.6, 7.1, 7.2, 7.5, 7.9, 7.21
Land and Environment Court Act 1979, s 39
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14, 15, 16
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28
Water Management Act 2000, s 91

Cases Cited:
Maule v Liporoni & Anor (2002) 122 LGERA 216; [2002] NSWLEC 140

Texts Cited:
Apartment Design Guide
Australian Standard AS 4299–1995, Adaptable housing
Great Lakes Development Control Plan 2014

Category: Principal judgment
Parties: CJHA Pty Ltd (Applicant)
Mid-Coast Council (Respondent)
Representation:
Counsel:
A McKelvey (Solicitor) (Applicant)
A Pickup (Solicitor) (Respondent)
Solicitors:
Sparke Helmore (Applicant)
Mid-Coast Council (Respondent)

File Number(s): 2020/59426
Publication restriction: No

Judgment

COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Mid-Coast Council (the Respondent) of Development Application No 283/2019 that seeks consent for consolidation of lots, residential flat building and 2 lot Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest (the site).
According to the Amended Statement of Facts and Contentions prepared by the Respondent in this matter (Exhibit 2), the proposal comprises the following:

Consolidation of Lots 88, 89, 90 and A and B and re-subdivision into 2 Lots (being proposed lots 1 and 2) along the existing R3 and E2 zone boundary.

Proposed Lot 1 will be 3,354m² in area.

Proposed Lot 2 will be 2,010m² in area.

Construction of a residential flat building comprising 29 units in five storeys within proposed Lot 1.

Proposed Lot 2 is primarily zoned E2 (Environmental Conservation) and will be retained until all required…

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: [2021] NSWLEC 1539
Decision Date: 29 September 2021

CaseChat Overview and Summary

Cjha Pty Ltd sought a review of a decision by the Mid-Coast Council to deny development consent for a residential flat building and lot subdivision at 12 Yamba Street, Hawks Nest. The council's decision was made under the Great Lakes Local Environmental Plan 2014, which included a height restriction that the proposed development would contravene. Cjha applied for an exemption from the height restriction, but this was denied by the council. Cjha appealed the decision to the Land and Environment Court of New South Wales. The court was required to decide whether the council's decision to deny development consent was lawful and whether the applicant was entitled to an exemption from the height restriction.

The court found that the council's decision was not supported by the evidence and was therefore unlawful. The court held that the council had failed to consider all relevant factors and had not properly applied the relevant policy in the Great Lakes Local Environmental Plan 2014. The court also found that the applicant was entitled to an exemption from the height restriction, as the proposed development was in accordance with the overall objectives of the plan. The court held that the proposed development would not have a significant adverse impact on the character of the area and that the benefits of the development outweighed any potential harm. The court granted the applicant's appeal and development consent for the proposed development, subject to certain conditions.

Orders

Orders of the court

The Court orders that:

(1) The Applicant’s written request to contravene the height of building standard at cl 4.3 of the Great Lakes Local Environmental Plan 2014, pursuant to cl 4.6 of the Great Lakes Local Environmental Plan 2014, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No 283/2019 for consolidation of lots, residential flat building and 2 lot Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest, subject to conditions at Annexure A.

(4) All exhibits are returned, except for Exhibits A, B, C, D, E, 6 and 7.

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:	CJHA Pty Ltd v Mid-Coast Council [2021] NSWLEC 1539
Hearing dates:	6 September 2021
Date of orders:	29 September 2021
Decision date:	29 September 2021
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant’s written request to contravene the height of building standard at cl 4.3 of the Great Lakes Local Environmental Plan 2014, pursuant to cl 4.6 of the Great Lakes Local Environmental Plan 2014, is upheld. (2) The appeal is upheld. (3) Development consent is granted to Development Application No 283/2019 for consolidation of lots, residential flat building and 2 lot Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest, subject to conditions at Annexure A. (4) All exhibits are returned, except for Exhibits A, B, C, D, E, 6 and 7.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – residential flat building – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – height of buildings – conditions of consent
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55 Great Lakes Local Environmental Plan 2014, cll 4.1, 4.1D, 4.3, 4.6, 7.1, 7.2, 7.5, 7.9, 7.21 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14, 15, 16 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28 Water Management Act 2000, s 91
Cases Cited:	Maule v Liporoni & Anor (2002) 122 LGERA 216; [2002] NSWLEC 140
Texts Cited:	Apartment Design Guide Australian Standard AS 4299–1995, Adaptable housing Great Lakes Development Control Plan 2014
Category:	Principal judgment
Parties:	CJHA Pty Ltd (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: A McKelvey (Solicitor) (Applicant) A Pickup (Solicitor) (Respondent) Solicitors: Sparke Helmore (Applicant) Mid-Coast Council (Respondent)
File Number(s):	2020/59426
Publication restriction:	No