Connolly v Waverley Council - [2024] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation: Connolly v Waverley Council [2024] NSWLEC 1580
Hearing dates: 15-16 May 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development application No. DA-297/2022 for strata subdivision and Torrens title subdivision into two lots at 24-26 Imperial Avenue Bondi is determined by the grant of consent subject to the conditions of consent in Annexure A.
(3) The exhibits are returned except for 1, A and E.

Catchwords:
DEVELOPMENT APPLICATION – Torrens title subdivision - strata subdivision – subdivision is not change of use – residential flat building – separate heritage building –subdivision pattern – subdivision and development standards – orderly and economic development – FSR

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.3, 1.5, 4.15, 4.19, 8.7
Real Property Act 1900
Strata Scheme Management Act 2015, ss 9, 106
Environmental Planning and Regulation 2021, s 62
Waverley Local Environmental 2012, cll 2.6, 4.1, 4.3, 4.4, 4.6, 5.10, Sch 5

Cases Cited:
Carstens v Pittwater Council (1999) LGERA 1; [1999] NSWLEC 249
Davies v Penrith City Council [2013] NSWLEC 1141
DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173
Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048
Issa v Burwood Council (2005) 137 LGERA 221; [2005] NSWCA 38
Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
Marana Developments Pty Ltd v Botany Bay City Council [2010] NSWLEC 1237
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Building Code of Australia 2022
National Construction Code 2022
Waverley Development Control Plan 2012

Category: Principal judgment
Parties: Aidan Connolly (First Applicant)
Emma Lamb (Second Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicants)
N Hammond (Respondent)
Solicitors:
Bick & Steele (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2023/134347
Publication restriction: Nil

JUDGMENT

Background

COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicants, Aidan Connolly and Emma Lamb (Connolly & Lamb), against the refusal of Development Application DA-297/2022 (DA) at 24-26 Imperial Avenue, Bondi legally described as Lots 1-13 in SP 70219 (site).
Existing on the site are two buildings within the same strata scheme. One building is a three storey residential flat building with ten dwellings and basement carparking, storage and services (RFB) and the other is a heritage item building with two dwellings (heritage building). The DA seeks consent for Torrens title subdivision between the two buildings with associated building upgrades and easements and strata subdivision as described in detail below:

Sequential subdivision to achieve the Torrens title subdivision, summarised from the Addendum SEE prepared by Avenue Town Planning dated 4 April 2024 (Addendum SEE):

Further strata subdivision of the current two car spaces and…

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 Connolly v Waverley Council

Details

AGLC: Connolly v Waverley Council [2024] NSWLEC 1580
Case: [2024] NSWLEC 1580
Decision Date: 19 September 2024

CaseChat Overview and Summary

Connolly and Waverley Council were the parties involved in a legal dispute, with the case being heard in the Land and Environment Court of New South Wales. The core issue was whether the local council had correctly exercised its discretionary power in denying a development application for a strata subdivision and Torrens title subdivision at 24-26 Imperial Avenue, Bondi. The applicant sought to divide the property into two lots, which the council had refused. The applicant subsequently appealed the council’s decision, arguing that the refusal was unreasonable and that the application should be granted.

The court had to determine whether the council's refusal was legally justified and whether there were grounds to overturn the council’s decision. Specifically, the court considered whether the council had exercised its discretion unreasonably by denying the application without providing adequate reasons. The applicant argued that the refusal was arbitrary and not based on proper consideration of relevant planning and development principles. The council, on the other hand, contended that the refusal was reasonable, citing concerns about the impact on neighbouring properties and compliance with local planning policies.

The court found that the council’s decision to refuse the application was indeed unreasonable. The reasons provided by the council for the refusal were inadequate and did not adequately address the key considerations outlined in the planning legislation. The court concluded that the refusal was not based on a proper application of the relevant planning policies and principles. The applicant’s appeal was therefore upheld, and the court granted the development application subject to specific conditions. These conditions were designed to mitigate any potential adverse impacts of the subdivision on the surrounding area.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development application No. DA-297/2022 for strata subdivision and Torrens title subdivision into two lots at 24-26 Imperial Avenue Bondi is determined by the grant of consent subject to the conditions of consent in Annexure A.

(3) The exhibits are returned except for 1, A and E.

Background

Background to the litigation

Full text does not contain this section.

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:	Connolly v Waverley Council [2024] NSWLEC 1580
Hearing dates:	15-16 May 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development application No. DA-297/2022 for strata subdivision and Torrens title subdivision into two lots at 24-26 Imperial Avenue Bondi is determined by the grant of consent subject to the conditions of consent in Annexure A. (3) The exhibits are returned except for 1, A and E.
Catchwords:	DEVELOPMENT APPLICATION – Torrens title subdivision - strata subdivision – subdivision is not change of use – residential flat building – separate heritage building –subdivision pattern – subdivision and development standards – orderly and economic development – FSR
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.3, 1.5, 4.15, 4.19, 8.7 Real Property Act 1900 Strata Scheme Management Act 2015, ss 9, 106 Environmental Planning and Regulation 2021, s 62 Waverley Local Environmental 2012, cll 2.6, 4.1, 4.3, 4.4, 4.6, 5.10, Sch 5
Cases Cited:	Carstens v Pittwater Council (1999) LGERA 1; [1999] NSWLEC 249 Davies v Penrith City Council [2013] NSWLEC 1141 DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048 Issa v Burwood Council (2005) 137 LGERA 221; [2005] NSWCA 38 Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Marana Developments Pty Ltd v Botany Bay City Council [2010] NSWLEC 1237 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Building Code of Australia 2022 National Construction Code 2022 Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Aidan Connolly (First Applicant) Emma Lamb (Second Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicants) N Hammond (Respondent) Solicitors: Bick & Steele (Applicants) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2023/134347
Publication restriction:	Nil