Datum Pty Ltd v Botany Bay City Council - [2003] NSWLEC 62

Land and Environment Court

of New South Wales

CITATION: Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62

PARTIES:
APPLICANT
Datum Pty Ltd
RESPONDENT
Botany Bay City Council

FILE NUMBER(S): (1)0224 of 2002 and 10616 of 2002

CORAM: Pearlman J

KEY ISSUES: Building Application - Development Application :-
Building Application:- building certificate - work done without consent
Development Application:- strata subdivision - zone objectives - amenity - future character

LEGISLATION CITED: Botany Local Environmental Plan 1995
Building Design and Construction Development Control Plan 2002
Environmental Planning and Assessment Act 1979
Subdivision Development Control Plan 1999

CASES CITED:

DATES OF HEARING: 09/12/2002; 10/12/2002

DATE OF JUDGMENT:
03/14/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr A M Pickles (Barrister)
SOLICITORS
N/A
RESPONDENT
Mr T J O'Connor (Solicitor)
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

(1)0224 of 2002 and 10616 of 2002

Pearlman J
14 March 2003

DATUM PTY LTD

Applicant

BOTANY BAY CITY COUNCIL

Respondent

Judgment

Introduction

1 These are two appeals by the applicant, Datum Pty Ltd, against decisions of Botany Bay City Council (“the council”). The first is an appeal against the refusal of a development application for the strata subdivision of a residential flat building containing six residential flats. The second appeal is against the council's failure to issue a building certificate for those premises.

2 For the reasons which follow, I have concluded that each appeal should be upheld, and that both development consent and a building certificate should be granted.

3 I record that I had the assistance of Commissioner Moore in the hearing of the appeals and that the Court had the benefit of a view of the site and its environs.

The site

4 The proposed development is located at 8 Templeman Crescent, Hillsdale (“the site”) and is lot 22 DP 219427. It is generally rectangular in shape, with dimensions of the order of 15 metres in width and 28 metres in depth. The front boundary is curved and the overall site area is some 436 m2. The land at 6 Templeman Crescent, to the west of the site, is a children’s playground owned and maintained by the council. The locality appears to have been subdivided and zoned for walk-up flats in the 1960s without prior use for detached housing – although there are some (but not many) detached houses in the surrounding streets. Development in the immediate vicinity comprises three storey walk-up flats, similar to those on the site. All buildings in Templeman Crescent are 3 storey residential flat buildings (except No 2 which is two storeys).

5 Presently erected on the site is a 3-storey brick building constructed pursuant to an approval dated 13 May 1964. The building contains six units, with 2 units on each level. The floor plan is identical on each level – resulting in there being three each of what were described as “Type A” units (Units 1, 3 and 5) and three of “Type B” (Units 2, 4 and 6), with one of each on each level of 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: [2003] NSWLEC 62
Decision Date: 03/14/2003

CaseChat Overview and Summary

Datum Pty Ltd (the applicant) sought review of two decisions of Botany Bay City Council (the council). The first was the refusal of a development application for the strata subdivision of a residential flat building containing six residential flats. The second was the council's refusal to issue a building certificate for the premises. The court had to decide whether the applicant's strata subdivision proposal was consistent with the secondary objectives of the Botany Local Environmental Plan 1995 and the Subdivision Development Control Plan 1999 and whether the renovations complied with the Building Design and Construction Development Control Plan 2002. The court also had to determine if the applicant was entitled to a building certificate. The court found that the proposed strata subdivision was consistent with the secondary objectives of the LEP and DCP. The court held that the applicant had made improvements to the residential amenity and had encouraged the revitalisation and improvement of the older established residential areas. The court also found that the renovations complied with the Building DCP. The court concluded that, despite the building works being done without consent, there was no sufficient reason to refuse the grant of a building certificate. The court upheld both appeals and granted the development consent subject to certain conditions.

Orders