Davies v Penrith City Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: Davies v Penrith City Council [2013] NSWLEC 1141
Hearing dates:24 June 2013
Decision date: 31 July 2013
Jurisdiction:Class 1
Before: Moore SC
Decision:

Directions given for the electronic filing of conditions to permit a significantly reduced development and one confined to being behind the building line being granted development consent.

Catchwords:

AGENTS: Requirements of s 63 of the Land and Environment Court Act 1979 and rule 7.7 of the Land and Environment Court Rules 2007; conduct of agent (Mr R Creighton) in these proceedings

PLANNING PRINCIPLES: Revision of the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444; revised planning principle for assessing impacts on neighbouring properties

DEVELOPMENT APPLICATION: Compliance with objectives of Local Environmental Plan; role of prohibition in Development Control Plan; streetscape; consistency with neighbouring development
Legislation Cited: Land and Environment Court Rules 2007
Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Courts and Other Legislation Amendment Act 2012
Civil Procedure Act 2005
Land and Environment Court Rules (Amendment No 1) 2013
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Penrith Local Environmental Plan 1998 (Urban Land)
Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Pafburn v North Sydney Council [2005] NSWLEC 444
Grant v Kiama Municipal Council [2006] NSWLEC 70
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Category:Principal judgment
Parties:

G Davies (Applicant)

Penrith City Council (Respondent)
Representation: Counsel
Ms L M Saw (Applicant)
Mr S Nash (Respondent)
Solicitors
Legal Section,
Penrith Council (Respondent)
File Number(s):10269 of 2013
Publication restriction:No

Judgment

INDEX

Topic

Paragraph

Introduction

1

My refusing Mr. Creighton leave to appear as agent

4

Legislative history of agents' roles in the Court

10

Mr Creighton's initial participation

29

The period until the site inspection

37

The site inspection

50

Appearing" - the process

60

The proceedings in court

66

Amendment to the plans

78

Mr Creighton's post hearing communication

80

The scope of s 56 of the Civil Procedure Act 2005

83

Concluding comments concerning Mr Creighton's behaviour

86

Mr Davies' proposed carport

The relevant planning framework

92

The Development Control Plan

99

The weight to be given to the DCP

105

The setting and an introduction to the application

108

Revision of the Planning Principle in Pafburn

116

Admission of evidence

122

Consideration of the planning issues

125

Conclusion

150

Conditions of consent

155

Directions

161

Introduction

  1. SENIOR COMMISSIONER: An appeal concerning a proposal to erect a carport at the front of a suburban dwelling, as is this appeal, would not, ordinarily, lead to consideration and discussion of the Land and Environment Court Act 1979 (the Court Act) and the Land and Environment Court Rules 2007 (the Court Rules).

  1. However, during the course all this appeal, I refused leave to Mr. Creighton to appear as agent for Mr. Davies. This judgement sets out my reasons for making that decision…

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Details
Case
[2013] NSWLEC 1141
Decision Date

CaseChat Overview and Summary

In the case of Davies versus Penrith City Council, the applicant sought approval for a development that was significantly reduced from the initial proposal. The development in question involved alterations to a property located in Penrith, with the proposed changes including modifications to the building's appearance and structure. The Penrith City Council, acting as the relevant planning authority, was responsible for assessing the application and determining whether to grant development consent. The applicant argued that the modifications were necessary for the property's functionality and aesthetic appeal, while the Council expressed concerns about the impact on the surrounding environment and neighbourhood character.

The central legal issues that the court needed to address involved whether the modified development proposal complied with the relevant planning legislation and local planning policies. Specifically, the court had to consider whether the reduced development was in line with the objectives of the local planning instrument and whether it would have an unacceptable impact on the neighbourhood. Additionally, the court examined whether the proposed development adhered to the design guidelines and building standards set forth by the Council.

The court determined that the modified development proposal, which involved a significant reduction in scale and a placement behind the building line, was consistent with the objectives of the local planning instrument. The court acknowledged that the reduced development would have a lesser impact on the surrounding environment and neighbourhood character compared to the initial proposal. Furthermore, the court found that the modified development complied with the design guidelines and building standards. As a result, the court concluded that the Council should grant development consent for the modified proposal, subject to the electronic filing of specific conditions. The court's decision was based on a careful analysis of the planning legislation, local planning policies, and the particular circumstances of the case.

Orders

Orders of the court

Directions given for the electronic filing of conditions to permit a significantly reduced development and one confined to being behind the building line being granted development consent.

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.