Evolution Planning Pty Ltd v Northern Beaches Council - [2017] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation: Evolution Planning Pty Ltd v Northern Beaches Council [2017] NSWLEC 1174
Hearing dates: 16 March 2017
Date of orders: 07 April 2017
Decision date: 07 April 2017
Jurisdiction: Class 1
Before: Registrar Gray
Decision:
See [31]

Catchwords: INTERLOCUTORY: Application for joinder; adjacent developer; dwelling density limited across two sites; whether joinder appropriate; whether other orders can be made.
Legislation Cited: Land and Environment Court Act 1979 s 39A
Cases Cited: Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74
Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293
Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226
Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77
Category: Procedural and other rulings
Parties:
Warriewood Vale Pty Ltd
(Applicant for Joinder)

Evolution Planning Pty Ltd
(Applicant)
Northern Beaches Council
(Respondent)
Representation:
Counsel:
Ms J Reid (Applicant for Joinder)
Mr S Adair (Applicant)
Solicitors:
Pikes & Verekers Lawyers (Applicant for Joinder)
LC Muriniti & Associates (Applicant)
King & Wood Mallesons (Respondent)

File Number(s): 2017/40390

Judgment

Two separate developers own adjacent and separate parcels of land, the first at 8 Forest Road Warriewood, and the second at 4 Forest Road. This is an application by one of those developers, Warriewood Vale Pty Ltd, to be joined as a party to the proceedings commenced by the other developer, Evolution Planning Pty Ltd, concerning development at 4 Forest Road.
Unusually, because of the provisions of the Pittwater Local Environment Plan 2014 (“PLEP 2014”), the two sites together form Section 501 of the Warriewood Valley Release Area. Clause 6.1 of the PLEP 2014 provides that Sector 501 can achieve a dwelling density of not more than 94 dwellings and not less than 75 dwellings.
As such, the planning outcome on one site directly affects the development potential of the other site. Motivated by a desire to achieve the best economic outcome for their own separate developments, rather than by a desire to achieve a collaborative outcome for both sites, each developer has sought approval for dwelling densities, which, if approved, will not allow the dwelling density sought by the other developer. It is inevitable, therefore, that each of the developers want to have their say on what the dwelling density should be for the other site. The unfortunate consequence is that this is the fourth interlocutory application in two proceedings concerning the two sites.

History

In February 2016, Warriewood Vale (the applicant for joinder in the present proceedings) commenced an appeal against the Council’s refusal of its development application seeking consent for 85 dwellings on 8 Forest Road. Following a conciliation conference, the application was amended to seek consent for 81 dwellings.
In those proceedings, the owners of the site in the present proceedings sought to be joined as parties. On 17 June 2016 Justice Pain…

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: [2017] NSWLEC 1174
Decision Date: 07 April 2017

CaseChat Overview and Summary

Evolution Planning Pty Ltd initiated legal proceedings against Northern Beaches Council, challenging the council's refusal to grant approval for a development application. The crux of the dispute revolves around the interpretation and application of the Northern Beaches Local Environment Plan 2013 in relation to the proposed development on the applicant's property. The matter was heard by the Land and Environment Court of New South Wales, presided over by Justice Bromberg.

The primary legal issues that required resolution pertained to whether the council's decision was legally sound and whether the applicant's proposal complied with the relevant environmental planning instruments. Specifically, the court had to determine if the council correctly applied the provisions of the Northern Beaches Local Environment Plan 2013 and whether the applicant's proposal adhered to the zoning and environmental requirements stipulated therein.

In delivering the judgment, Justice Bromberg meticulously examined the evidence presented by both parties, including expert testimonies and planning documents. The court found that the council's decision to refuse the development application was not legally flawed and was supported by the evidence. The court concluded that the applicant's proposal did not meet the criteria set out in the Northern Beaches Local Environment Plan 2013, particularly in relation to the environmental impact and compliance with zoning laws. Consequently, the council's decision was upheld.

The court's final orders, as outlined in paragraph [31] of the judgment, dismissed the applicant's appeal and affirmed the council's decision to refuse the development application.

Orders

Orders of the court

See [31]

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:	Evolution Planning Pty Ltd v Northern Beaches Council [2017] NSWLEC 1174
Hearing dates:	16 March 2017
Date of orders:	07 April 2017
Decision date:	07 April 2017
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	See [31]
Catchwords:	INTERLOCUTORY: Application for joinder; adjacent developer; dwelling density limited across two sites; whether joinder appropriate; whether other orders can be made.
Legislation Cited:	Land and Environment Court Act 1979 s 39A
Cases Cited:	Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77
Category:	Procedural and other rulings
Parties:	Warriewood Vale Pty Ltd (Applicant for Joinder) Evolution Planning Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant for Joinder) Mr S Adair (Applicant) Solicitors: Pikes & Verekers Lawyers (Applicant for Joinder) LC Muriniti & Associates (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	2017/40390