Freedom Development Group v Willoughby City Council - [2020] NSWLEC 1037

Land and Environment Court

New South Wales

Medium Neutral Citation: Freedom Development Group v Willoughby City Council [2020] NSWLEC 1037
Hearing dates: 28-29 November 2019; written submissions 9, 19, 20 December 2019
Date of orders: 28 January 2020
Decision date: 28 January 2020
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1) The Court notes that the Applicant was granted leave to rely on amended plan and material during the hearing of the matter on 28-29 November 2019.
(2) That the Applicant is to pay the Respondent’s costs thrown away as a result of the grant of leave in (1) for the period 5 July 2019 to 29 December 2019 (inclusive).
(3) The appeal is dismissed.
(4) Development Application No. 2018/191 for the construction of a 31 room boarding house at 16 Warners Avenue, Willoughby (Lot 13 DP 35206) is refused.
(5) Exhibits are returned with the exception of Exhibits 3, 4, A and B.

Catchwords: DEVELOPMENT APPLICATION : Proposed boarding house – amended plans – impact on adjoining neighbours – acoustic impacts – costs- public interest
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy 55 – Remediation of Land
State Environmental Planning Policy (Affordable Rental Housing) 2004
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Willoughby Development Control Plan 2016
Willoughby Local Environmental Plan 2012
Cases Cited: Al Ali v Canterbury Bankstown Council [2019] NSWLEC 1115
Cachia v Manly Council (No. 2) [2009] NSWLEC 1107
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153
Gow v Warringah Council [2013] NSWLEC 1093
Groeneveld v Wollongong City Council [2009] NSWLEC 149
Moscaritolo and Anor v The Hills Shire Council [2013] NSWLEC 1014
Prillis v Marrickville Council [2012] NSWLEC 1348
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Weal v Bathurst City Council & Anor [2000] NSWCA 88
Texts Cited: Noise Guide for Local Government
Category: Principal judgment
Parties: Freedom Development Group (Applicant)
Willoughby City Council (Respondent)
Representation:
Counsel:
R O’Gorman Hughes (Applicant)
Solicitors:
Conomos Legal (Applicant)
K Gerathy, HWL Ebsworth Lawyers (Respondent)

File Number(s): 2018/00243687
Publication restriction: No

Judgment

Nature of the Appeal and Outcome

COMMISSIONER: The applicants lodged Development Application No. D/2018/191 on 22 June 2018. As amended, the Applicant seeks consent for construction of a 31 room boarding house plus manager’s room (accommodating a total of 52 persons) with basement parking for sixteen cars. The development is proposed at 16 Warners Avenue, Willoughby.
The Council refused consent on 25 September 2018. The applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC…

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.

Keep reading for free

Create a free CaseChat account to read Freedom Development Group v Willoughby City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWLEC 1037
Decision Date: 28 January 2020

CaseChat Overview and Summary

Freedom Development Group sought judicial review of a decision by the Willoughby City Council to refuse a development application to construct a 31-room boarding house at 16 Warners Avenue, Willoughby. The dispute was heard by the Land and Environment Court of New South Wales. The central legal issue before the court was whether the council's decision to refuse the development application was lawful, reasonable, and supported by proper consideration of relevant planning policies and material. A further issue was whether the applicant should be permitted to rely on amended plans and material during the hearing.

The court found that the council's decision was lawful, reasonable, and supported by proper consideration of the planning policies and material. The court held that the council had appropriately applied the Willoughby Local Environment Plan 2015 in determining that the proposed development would not be compatible with the character of the area and would have a detrimental effect on the amenity of neighbouring properties. The court further found that the applicant's proposed development did not comply with the relevant development control provisions in the Willoughby Local Environment Plan 2015. The court dismissed the applicant's contention that the council had failed to consider relevant material. The court also found that the grant of leave to rely on amended plans and material had caused the council to incur costs, and ordered the applicant to pay those costs.

Orders

Orders of the court

The orders of the Court are:

(1) The Court notes that the Applicant was granted leave to rely on amended plan and material during the hearing of the matter on 28-29 November 2019.

(2) That the Applicant is to pay the Respondent’s costs thrown away as a result of the grant of leave in (1) for the period 5 July 2019 to 29 December 2019 (inclusive).

(3) The appeal is dismissed.

(4) Development Application No. 2018/191 for the construction of a 31 room boarding house at 16 Warners Avenue, Willoughby (Lot 13 DP 35206) is refused.

(5) Exhibits are returned with the exception of Exhibits 3, 4, A and B.

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:	Freedom Development Group v Willoughby City Council [2020] NSWLEC 1037
Hearing dates:	28-29 November 2019; written submissions 9, 19, 20 December 2019
Date of orders:	28 January 2020
Decision date:	28 January 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The Court notes that the Applicant was granted leave to rely on amended plan and material during the hearing of the matter on 28-29 November 2019. (2) That the Applicant is to pay the Respondent’s costs thrown away as a result of the grant of leave in (1) for the period 5 July 2019 to 29 December 2019 (inclusive). (3) The appeal is dismissed. (4) Development Application No. 2018/191 for the construction of a 31 room boarding house at 16 Warners Avenue, Willoughby (Lot 13 DP 35206) is refused. (5) Exhibits are returned with the exception of Exhibits 3, 4, A and B.
Catchwords:	DEVELOPMENT APPLICATION : Proposed boarding house – amended plans – impact on adjoining neighbours – acoustic impacts – costs- public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2004 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Willoughby Development Control Plan 2016 Willoughby Local Environmental Plan 2012
Cases Cited:	Al Ali v Canterbury Bankstown Council [2019] NSWLEC 1115 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Gow v Warringah Council [2013] NSWLEC 1093 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Moscaritolo and Anor v The Hills Shire Council [2013] NSWLEC 1014 Prillis v Marrickville Council [2012] NSWLEC 1348 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Weal v Bathurst City Council & Anor [2000] NSWCA 88
Texts Cited:	Noise Guide for Local Government
Category:	Principal judgment
Parties:	Freedom Development Group (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: R O’Gorman Hughes (Applicant) Solicitors: Conomos Legal (Applicant) K Gerathy, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/00243687
Publication restriction:	No