Dasey v North Sydney Council - [1999] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION:

Dasey v North Sydney Council [1999] NSWLEC 234

PARTIES

APPLICANT
Dasey

RESPONDENT
North Sydney Council

NUMBER:

10937 of of 1998

CORAM:

Pearlman J

KEY ISSUES:

Section 56A Appeal :- misdirection as to meaning of "material"

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 56A
North Sydney Local Environmental Plan 1989
State Environmental Planning Policy No 1

DATES OF HEARING:

09/23/1999

DATE OF JUDGMENT DELIVERY:

10/07/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr G A Green (Solicitor)
SOLICITORS
Pike Pike & Fenwick
RESPONDENT
Mr C W McEwen (Barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND 10937 of 1998

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 7 October 1999

DIANA DASEY

Applicant

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 brought by North Sydney Council (“the council”) against the decision of Commissioner Murrell. The Commissioner granted approval subject to conditions to the subdivision and erection of semi-detached houses at No. 39 Clifton Street, Waverton.

2. An appeal under s 56A is confined to an error of law. The sole ground of appeal is that the Commissioner erred in law in that:

The Commissioner misdirected herself as to the meaning of “material” in clause 13(2) of North Sydney Local Environmental Plan 1989 and as a consequence:

(a) The Commissioner misdirected herself whether, pursuant to clause 13(2), there was a material overshadowing impact on 50 Euroka Street, Waverton; and
(b) The Commissioner misdirected herself whether, under clause 13(2), there was a material loss of views from 56 Euroka Street, Waverton.

Background

3. The site is within zone no. 2(c) (Residential “C”) under North Sydney Local Environmental Plan 1989 (“the LEP”) and the proposed development is permissible with consent.

4. It appears to have been common ground (although I could find no particular reference to it in the Commissioner’s judgment) that part of the proposed buildings, if erected, would exceed the “building height plane” as that term is defined in the LEP. It also appears to be common ground that the exceedence would increase the overshadowing on an adjoining property (No 50. Euroka Street, Waverton) and would obstruct views from another adjoining property (No. 56 Euroka Street, Waverton).

5. In those circumstances, cl 13 of the LEP applies. It provides as follows:

13. (1) Subject to subclause (2), a building shall not be erected on a site within Zone … 2(c) … where any part of the building will exceed a building height plane projected at any point from any boundary of the site.

(2) A building may be erected which does not comply with the building height plane provided the building, when erected -

(a) will not materially increase the overshadowing of adjoining properties;

(b) will not materially reduce the level of privacy enjoyed by adjoining properties;

(c) will not materially obstruct views from adjoining buildings; and
(d) will not materially reduce the…

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: [1999] NSWLEC 234
Decision Date: 10/07/1999

CaseChat Overview and Summary

In Dasey v North Sydney Council, the North Sydney Council appealed a decision by Commissioner Murrell who had approved the subdivision and erection of semi-detached houses at No. 39 Clifton Street, Waverton, subject to certain conditions. The appeal was brought under section 56A of the Land and Environment Court Act 1979, focusing on an alleged error of law by the Commissioner regarding the meaning of "material" in clause 13(2) of the North Sydney Local Environmental Plan 1989.

The legal issues centred on whether the Commissioner misdirected herself in interpreting the term "material" and, consequently, misapplied the criteria for determining material overshadowing and obstruction of views. The council argued that the Commissioner's interpretation elevated clause 13 beyond its intended function, which was merely a development standard. The applicant, on the other hand, maintained that the interpretation of "material" was a factual question for the Commissioner to decide, supported by the use of a dictionary and the evidence presented.

Pearlman J dismissed the appeal, finding that the Commissioner did not misdirect herself in law. The Court held that the interpretation of "material" was a factual question, and the Commissioner's approach was consistent with the proper construction of the clause within its context. The Commissioner had correctly applied the meaning of "material" and determined that the proposed development did not result in a material impact, thus satisfying clause 13(2). The Court also noted that even if there had been an error, it would not have vitiated the Commissioner's decision.

The final orders were that the appeal was dismissed, the respondent (North Sydney Council) must pay the applicant's costs, and the exhibits could be returned.

Orders