Crossley v Warringah Council

[2008] NSWLEC 1427

Land and Environment Court

of New South Wales

CITATION:	Crossley v Warringah Council [2008] NSWLEC 1427
PARTIES:	Applicant: David and Rhonda Crossley Respondent: Warringah Council
FILE NUMBER(S):	10545 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	6 August 2008, 24 September 2008 and 24 October 2008
DATE OF JUDGMENT:	28 October 2008
LEGAL REPRESENTATIVES:	Applicant: applicant in person Respondent: Ms J Hewitt, solicitor of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

28 October 2008

10545 of 2008 David and Rhonda Crossley v Warringah Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Warringah Council (the council) of a development application to demolish the existing buildings and erect a three-storey residential flat building on lots A, B and C DP 330839, known as 71 Pacific Parade and 2-6 The Crescent, Dee Why.

2 The matter was determined pursuant to s34 of the Land and Environment Court Act 1979. The parties held conciliation conferences on 6 August and 24 September 2008, at which they reached agreement on all matters except the concerns of the objectors. This is not to say that the council considered that the objectors concerns were a reason for refusing the application; nor that it brought expert evidence in support of those concerns. The council’s position was that it was satisfied with the proposal and that it did not consider any of the objectors’ concerns valid; however, it wanted the Court to be responsible for a decision, which was likely to be unsatisfactory to the objectors. In effect, the parties agreed to the Commissioner disposing of the matter pursuant to s34(4)(b), but without there being any real dispute between them.

3 The Court heard the evidence of one objector. Ms Sylvia Cilla, who lives in townhouse 6, 9-11 The Crescent said that the area was not suitable for more flats. The traffic and parking situation was bad and the council did not clean the area. The council did not support the objection. Given the zoning of the site, it is not an objection that would justify refusal of the application. The appeal is therefore upheld.

4 The parties requested consent orders. On the assumption that consent orders are possible following a hearing pursuant to s34(4)(b), I make the orders.

Consent orders

1. The appeal is upheld.

2. Development consent to demolish the existing buildings and erect a three-storey residential flat building on lots A, B and C DP 330839, known as 71 Pacific Parade and 2-6 The Crescent, Dee Why is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1 and A are retained on the Court’s files.

_____________________
Dr John Roseth
Senior Commissioner