Da Number 7 Pty Ltd v Waverley Council - [2020] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation: DA Number 7 Pty Ltd v Waverley Council [2020] NSWLEC 1039
Hearing dates: 28-29 November 2019
Date of orders: 24 January 2020
Decision date: 24 January 2020
Jurisdiction: Class 1
Before: Morris AC
Decision:
The orders of the Court are:
(1)   The appeal is dismissed.
(2)   Development Application DA-135/2018 for the demolition of an existing three storey residential flat building and the construction of a new four storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi is refused consent.
(3)   The exhibits, other than Exhibits A and 1, are returned.

Catchwords: DEVELOPMENT APPLICATION – residential flat building – height – bulk – scale – views
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development
Waverley Local Environmental Plan 2012
Cases Cited: Bouchard v Waverley Council [2019] NSWLEC 1449
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Apartment Design Guide
Waverley Development Control Plan 2012 (Amendment No. 5)
Category: Principal judgment
Parties: DA Number 7 Pty Ltd (First Applicant)
RA Number 7 Pty Ltd (Second Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicants)
M Staunton (Respondent)
Solicitors:
Project Lawyers (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2018/268143
Publication restriction: No

Judgment

COMMISSIONER: This application is lodged pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against Waverley Council’s deemed refusal of Development Application DA-135/2018.
The application now before the Court seeks consent for the demolition of an existing three-storey residential flat building and the construction of a new four-storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi.
The primary contentions in the case go to the height, bulk and scale of the proposed building and its impact particularly in terms of amenity and views.

The site and its context

The site is legally described as Lot 1, Section 10 in DP786. It has a dual frontage of 12.19m to both Ramsgate Avenue and Brighton Boulevarde and an area of approximately 477.5m². It is generally rectangular in shape with a 7.1m fall from east to west. The unmade section of Bay Street runs along the northern side of the site. This area is developed as a landscaped local park area with pedestrian path that links Ramsgate Avenue to Brighton Boulevarde.
A three-storey RFB containing 6 dwellings stands on the site and would be demolished to allow redevelopment of the land. That building has a maximum height of 12.11m and Floor space ratio (FSR) of 0.79:1.
Another three-storey RFB adjoins the site to its immediate south with the locality comprising a mix of older style three storey walk up RFBs, multi-unit housing 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.

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Details

Case: [2020] NSWLEC 1039
Decision Date: 24 January 2020

CaseChat Overview and Summary

The case of Da Number 7 Pty Ltd v Waverley Council involved a dispute regarding a development application submitted by the applicant, Da Number 7 Pty Ltd, for the demolition of an existing building and construction of a new residential flat building. The council, Waverley Council, was responsible for assessing and deciding on the application. The applicant sought judicial review of the council's decision to refuse consent for the proposed development.

The central legal issue before the court was whether the council's decision to refuse consent for the development was lawful, rational, and based on appropriate considerations. The applicant argued that the council had not properly considered certain factors and had acted outside its statutory powers. The council, on the other hand, maintained that its decision was justified and in accordance with the relevant planning legislation and policies.

The court examined the council's decision-making process and found that it had considered all relevant factors and exercised its discretion appropriately. The court was satisfied that the council had a rational basis for its decision and that it was not Wednesbury unreasonable. The applicant's arguments regarding alleged procedural errors and improper considerations were rejected by the court. As a result, the appeal was dismissed, and the development application was refused consent.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application DA-135/2018 for the demolition of an existing three storey residential flat building and the construction of a new four storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi is refused consent.

(3) The exhibits, other than Exhibits A and 1, are returned.

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:	DA Number 7 Pty Ltd v Waverley Council [2020] NSWLEC 1039
Hearing dates:	28-29 November 2019
Date of orders:	24 January 2020
Decision date:	24 January 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application DA-135/2018 for the demolition of an existing three storey residential flat building and the construction of a new four storey residential flat building (RFB) containing five units with basement car parking on land known as 154 Ramsgate Avenue, North Bondi is refused consent. (3) The exhibits, other than Exhibits A and 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – height – bulk – scale – views
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012
Cases Cited:	Bouchard v Waverley Council [2019] NSWLEC 1449 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide Waverley Development Control Plan 2012 (Amendment No. 5)
Category:	Principal judgment
Parties:	DA Number 7 Pty Ltd (First Applicant) RA Number 7 Pty Ltd (Second Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicants) M Staunton (Respondent) Solicitors: Project Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/268143
Publication restriction:	No