Commins v Leichhardt Council - [2011] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation: Commins v Leichhardt Council [2011] NSWLEC 1095
Hearing dates: 18 April 2011
Decision date: 28 April 2011
Before: Pearson C
Decision:
Applicant to provide an amended SEPP 1 objection and the parties to provide amended conditions of consent including a condition requiring an amendment to the plans to incorporate an additional 700mm rear setback by 4 May 2011, following which orders will be made in chambers.

Catchwords: Development application - alterations and additions to dwelling - overshadowing
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000
Cases Cited: Parsonage v Ku-ring-gai [2004] NSWLEC 347
The Super Studio v Waverley Council (2004) 133 LGERA 363
Pafburn v North Sydney Council [2005] NSWLEC 444
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Zhang v Canterbury City Council (2001) 115 LGERA 373
Category: Principal judgment
Parties: Jessica Commins (Applicant)
Leichhardt Council (Respondent)
Representation: Mr A Pickles (Applicant)
Mr R Commins, Patterson Houen & Commins (Applicant)
Ms R McCulloch, Pikes Lawyers (Respondent)

File Number(s): 10117 of 2011

Judgment

This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Leichhardt Council (the Council) of consent to Development Application No D/2010/346 for alterations and additions to an existing dwelling at Lot 2 DP908855, 102 Phillip Street Birchgrove (the site).

The matter was set down for a conciliation conference under s34AA of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement. Pursuant to s34AA(2)(b) of the Court Act, the conciliation conference was terminated and a hearing was held. The parties consented to evidence heard on site and the site view forming part of the evidence in the proceedings.

The site and surrounding area

The site is located on the north western side of Phillip Street and has an area of approximately 120.1sqm. The immediate vicinity of the site is characterised by semi-detached and detached dwellings of mixed form and appearance. To the western side the site shares a right of way and adjoins 102 Phillip Street which consists of a one and two storey brick and timber residence. To the eastern side the site adjoins 32 Cameron Street, on which there is erected a single storey timber and clad cottage.

The first floor extension at the rear of 100 Phillip Street was approved in 2008 (D/2008/219) and that development consent was subsequently modified in 2009 to approve an increase in the area of the first floor addition. The Council granted development consent in 2009 (D/2009/89) for the demolition of the existing single storey dwelling at 32 Cameron Street and the construction of a new two storey dwelling and associated landscaping, pool, pergolas and carport. That development consent has not yet been acted on.

The proposal

The application the subject of these proceedings proposes alterations to the existing ground floor including…

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.

Continue reading Commins v Leichhardt Council

Details

AGLC: Commins v Leichhardt Council [2011] NSWLEC 1095
Case: [2011] NSWLEC 1095
Decision Date: 28 April 2011

CaseChat Overview and Summary

The case of Commins v Leichhardt Council involves a dispute over planning and development consent in New South Wales. The applicant, Commins, had submitted a development application for a residential building, which was approved by the council subject to certain conditions. The respondent, Leichhardt Council, was the local government authority that had granted the consent. The primary legal issue before the court was whether the applicant could provide an amended submission of evidence and planning permit conditions, and if so, what the appropriate timeline for such amendments should be.

The court examined the nature of the amendments proposed by the applicant and the council's response. The applicant sought to amend the submission of evidence to address an objection raised under the State Environment Planning Policy (SEPP 1). Additionally, the applicant wished to alter the conditions of consent to include a revised plan that incorporated a 700mm rear setback. The council, on the other hand, argued that the proposed amendments went beyond minor changes and required more time for proper consideration. The court was required to balance the applicant's right to amend submissions and conditions against the council's need for adequate time to review significant changes.

In reaching its decision, the court considered the scope of the proposed amendments and the timeliness of the application for these changes. It was noted that the amendments were not trivial and had implications for the planning process and the interests of other stakeholders. The court concluded that the applicant should be allowed to submit an amended submission of evidence and conditions of consent. However, to ensure that all parties had sufficient time to review and respond to the changes, the court set a deadline of 4 May 2011 for the submission of these amended documents. Following this deadline, the court would make the final orders in chambers, allowing for a thorough review of the revised plans and conditions.

Orders

Orders of the court

Applicant to provide an amended SEPP 1 objection and the parties to provide amended conditions of consent including a condition requiring an amendment to the plans to incorporate an additional 700mm rear setback by 4 May 2011, following which orders will be made in chambers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Commins v Leichhardt Council [2011] NSWLEC 1095
Hearing dates:	18 April 2011
Decision date:	28 April 2011
Before:	Pearson C
Decision:	Applicant to provide an amended SEPP 1 objection and the parties to provide amended conditions of consent including a condition requiring an amendment to the plans to incorporate an additional 700mm rear setback by 4 May 2011, following which orders will be made in chambers.
Catchwords:	Development application - alterations and additions to dwelling - overshadowing
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000
Cases Cited:	Parsonage v Ku-ring-gai [2004] NSWLEC 347 The Super Studio v Waverley Council (2004) 133 LGERA 363 Pafburn v North Sydney Council [2005] NSWLEC 444 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Zhang v Canterbury City Council (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Jessica Commins (Applicant) Leichhardt Council (Respondent)
Representation:	Mr A Pickles (Applicant) Mr R Commins, Patterson Houen & Commins (Applicant) Ms R McCulloch, Pikes Lawyers (Respondent)
File Number(s):	10117 of 2011