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Dem Gillespies v Warringah Council

Dem Gillespies v Warringah Council

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Case Copied 26 November 2002 50 min read

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Reported Decision: 124 LGERA 147

Land and Environment Court

of New South Wales

CITATION: Dem Gillespies v Warringah Council [2002] NSWLEC 224

PARTIES:
APPLICANT:
Dem Gillespies
RESPONDENT:
Warringah Council

FILE NUMBER(S): 10537 of 2001

CORAM: Bignold J

KEY ISSUES: Development Application :- Proposed development for housing for older persons etc-in non-urban area adjoining urban area-whether development consistent with desired future character of area.

LEGISLATION CITED: Warringah Local Environmental Plan 2000

CASES CITED: Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276;
Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 ;
Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Hornsby Shire Council v Malcolm(1986) 60 LGRA 429;
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190;
Hunt v Blacktown City Council (2001 116 LGERA 356;
Mackenzie v Warringah Council (2002) NSWLEC 131;
Maxwell v Hornsby (2002) 121 LGERA 186;
Momentum Architects Pty Ltd v Hornsby Shire Council (2002) NSWLEC 192;
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21;
Schroders Australia Property Management Ltd v Shoalhaven City Council (2002) NSWCA 74

DATES OF HEARING: 28-31/10/02

DATE OF JUDGMENT:
11/26/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Tobias QC with Ms S Duggan, Barrister
SOLICITORS
Day Dockrill
RESPONDENT:
Mr D Wilson, Barrister
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND

Matter No. 10537 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

26 November 2002

DEM GILLESPIES

Applicant

WARRINGAH COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council’s determination refusing development consent to an application to carry out housing for older people or people with a disability (comprising 117 self care dwellings and associated facilities) on land known as Nos 83/85 Booralie Road, Terrey Hills comprising two adjoining lots having an aggregated site area of 3.875 hectares (the development site). In its amended form the proposed development creates 112 self care dwellings.

2. In its Notice of Determination given pursuant to the EP&A Act, s 81 the Council stated 14 grounds or reasons for its determination refusing consent. These reasons included what was to become the principal focus of the hearing of the appeal, namely the assertion that the proposed development was “not consistent with the Desired Future Character Statement of the A2 Booralie Road Locality” included in the Warringah Local Environmental Plan 2000 (the LEP). In this respect, it is common ground that cl 12(3)(b) of the LEP which requires the consent authority to be “satisfied that the development is consistent with the desired future character described in the relevant Locality Statement” operates in the nature of a condition precedent to the granting of any development consent to the proposed development: cf Schroders Australia Property Management Ltd v Shoalhaven City Council (2002) NSWCA 74. I shall presently return to consider this all important question.

3. However, it…

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: [2002] NSWLEC 224
Decision Date: 11/26/2002

CaseChat Overview and Summary

The applicant, Dem Gillespies, sought development consent to carry out housing for older persons or people with a disability on land at Booralie Road, Terrey Hills. Warringah Council refused the consent on the basis that the proposed development was not consistent with the desired future character of the locality. The applicant appealed the decision to the Land and Environment Court. The court had to decide whether the proposed development was consistent with the desired future character of the locality as stated in the Warringah Local Environmental Plan 2000. The court considered the arguments of both parties and the expert opinions. The court concluded that the proposed development was not consistent with the desired future character of the locality and dismissed the appeal. The court refused the development consent.

Orders