Faseas v Coffs Harbour City Council - [2018] NSWLEC 1249

Land and Environment Court

New South Wales

Medium Neutral Citation: Faseas v Coffs Harbour City Council [2018] NSWLEC 1249
Hearing dates: 15-16 May 2018
Date of orders: 23 May 2018
Decision date: 23 May 2018
Jurisdiction: Class 1
Before: Morris AC
Decision:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No DA 1035/16DA for the change of use from a single dwelling to dual occupancy at 4 First Avenue, Arrawarra Headland, is refused consent.
(3) The exhibits, other than exhibits 1 and B, are returned.

Catchwords: DEVELOPMENT APPLICATION: whether time to appeal had lapsed; dual occupancy; minimum lot size; adequacy of information
Legislation Cited: Coffs Harbour Local Environmental Plan 2013;
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000;
Land and Environment Court Act 1979;
State Environmental Planning Policy No. 71 – Coastal Protection;
Cases Cited: Costello v Bathurst Regional Council [2017] NSW LEC 1195;
Integral Energy v Blue Mountains City Council [1998] NSWLEC 284;
Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA373; [2005] NSWLEC 514;
Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197
Wehbe v Pittwater Council [2007] NSWLEC 827;
Texts Cited: Coffs Harbour Development Control Plan 2015
Category: Principal judgment
Parties: Nick Faseas (Applicant)
Coffs Harbour City Council (Respondent
Representation: Solicitors:
Mr G Long, Long Legal Pty Ltd (Applicant)
Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 17/342704
Publication restriction: No

Judgment

Mr Faseas lodged Development Application No DA 1035/16DA with Coffs Harbour City Council on 23 June 2016 seeking consent to a change the use from single dwelling to dual occupancy at Lot 7, No 4 First Avenue, Arrawarra Headland. The council did not determine the application within the prescribed period and Mr Faseas is appealing its deemed refusal.
The issues in dispute are firstly the jurisdictional question as to whether the appeal was lodged out of time and, if the Court finds the appeal is competent, whether the application should be approved on its merits.
The matter is heard pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 (LEC Act). A conciliation conference and site view were held on the site of the proposed development however no agreement was reached and the matter proceeded to hearing in accordance with the requirements of s34AA(2)(b)(i) following termination of that conference.

The site and its context

The site is a rectangular allotment on the northern side of First Avenue and adjoins a beachfront reserve. It has a frontage of 18.1m and area of 505.9sqm. First Avenue is a narrow cul-de-sac and its streetscape consists of single dwelling houses of varied style, size and construction and includes both single and double story dwellings.
Panoramic ocean views are available from the site and the public reserve provides direct beachfront access.
The site contains an older style asbestos cement two storey dwelling house that has at some time been divided into two occupancies. It is 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: [2018] NSWLEC 1249
Decision Date: 23 May 2018

CaseChat Overview and Summary

The appeal before the Land and Environment Court of New South Wales involved the applicants, Faseas, and the respondent, Coffs Harbour City Council. The applicants sought to appeal the refusal of a development application for a change of use from a single dwelling to dual occupancy at a property located at 4 First Avenue, Arrawarra Headland. The Council had denied the application, leading to the applicants’ appeal to the Court.

The primary legal issue that the Court was required to determine was whether the Council’s decision to refuse the development application was legally sound and justifiable. This involved examining the application of relevant planning laws and policies to the specific circumstances of the property in question. Additionally, the Court needed to assess whether the Council’s decision was made in accordance with the correct legal principles and whether there were any errors in the application of those principles.

The Court found that the Council’s decision to refuse the development application was legally sound. The Court held that the refusal was based on a proper consideration of the relevant planning policies and the potential impacts on the local community. The Court also determined that the Council had not made any errors in the application of the relevant legal principles. Consequently, the Court dismissed the appeal and upheld the Council’s decision to refuse the development application.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No DA 1035/16DA for the change of use from a single dwelling to dual occupancy at 4 First Avenue, Arrawarra Headland, is refused consent.

(3) The exhibits, other than exhibits 1 and B, are returned.

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:	Faseas v Coffs Harbour City Council [2018] NSWLEC 1249
Hearing dates:	15-16 May 2018
Date of orders:	23 May 2018
Decision date:	23 May 2018
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No DA 1035/16DA for the change of use from a single dwelling to dual occupancy at 4 First Avenue, Arrawarra Headland, is refused consent. (3) The exhibits, other than exhibits 1 and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: whether time to appeal had lapsed; dual occupancy; minimum lot size; adequacy of information
Legislation Cited:	Coffs Harbour Local Environmental Plan 2013; Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979; State Environmental Planning Policy No. 71 – Coastal Protection;
Cases Cited:	Costello v Bathurst Regional Council [2017] NSW LEC 1195; Integral Energy v Blue Mountains City Council [1998] NSWLEC 284; Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA373; [2005] NSWLEC 514; Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197 Wehbe v Pittwater Council [2007] NSWLEC 827;
Texts Cited:	Coffs Harbour Development Control Plan 2015
Category:	Principal judgment
Parties:	Nick Faseas (Applicant) Coffs Harbour City Council (Respondent
Representation:	Solicitors: Mr G Long, Long Legal Pty Ltd (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	17/342704
Publication restriction:	No