Furlong v Northern Beaches Council - [2022] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation: Furlong v Northern Beaches Council [2022] NSWLEC 1208
Hearing dates: 17-18 February 2022
Date of orders: 22 April 2022
Decision date: 22 April 2022
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade Dee Why, is refused.
(3) The exhibits are returned with the exception of Exhibits 1, A and C which are retained.

Catchwords:
DEVELOPMENT APPLICATION – alterations and additions to a dwelling house – view loss – balancing view loss in instances of general compliance with other relevant controls – design alternatives

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, ss 34, 34AA, 39
Warringah Local Environmental Plan 2011, cl 1.2

Cases Cited:
Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85
Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Wang v North Sydney Council [2018] NSWLEC 122

Texts Cited:
Land and Environment Court, COVID-19 Pandemic Arrangements Policy, 1 December 2021
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Antaine Seamus Furlong (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Hones Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2021/277647
Publication restriction: No

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Northern Beaches Council's refusal of Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade, Dee Why (site).

Site and setting

I rely on Council’s Statement of Facts and Contentions filed 17 November 2021 (Ex 1) and the applicant’s reply statement filed 7 December 2021 (Ex B) for much of the factual material in this and the following two sections.
The site is legally described as Lot B in DP 338618. It is a battle-axe lot with its “handle” providing access towards the east and Wheeler Parade. Otherwise, the site is generally rectangular in shape. It is about 18.6m wide and has a depth of some 40.3m (excluding the access handle). The site has a surveyed area of 885.2m².
The site accommodates a three storey dwelling with a garage at entry level and two stories above. A swimming pool is on the middle level. The dwelling is located towards the west of the site, offset some 1.74m from the rear boundary (Plans tendered as Ex A Sheets 0328/DA 02/G and 0328/DA 10/G). The site slopes upwards towards the north-western corner with a rise of approximately 3m. However, the eastern portion of the site comprises a relatively…

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: [2022] NSWLEC 1208
Decision Date: 22 April 2022

CaseChat Overview and Summary

The matter of Furlong v Northern Beaches Council came before the Land and Environment Court of New South Wales. The dispute centred around the approval of a development application, DA2021/0517, which sought consent for alterations and additions to a residential property located at 55 Wheeler Parade, Dee Why. The applicant, Furlong, contested the council's refusal of the development application, asserting that the decision was not in accordance with the relevant planning framework and that the council had failed to properly consider several aspects of the application.

The primary legal issues that the court had to address were whether the council's decision was legally sound and if it was made in accordance with the relevant planning and environmental laws. Furlong argued that the council had erred in its interpretation of the planning controls and failed to adequately consider the merits of the proposed alterations. The council, on the other hand, maintained that the decision was correct and aligned with the statutory requirements and policies governing the area.

The court meticulously examined the evidence and submissions from both parties. It considered the planning legislation, relevant policies, and the specific circumstances of the site. Ultimately, the court found that the council's decision was legally sound and that Furlong had not demonstrated that the council had erred in law or failed to consider relevant matters. The court was satisfied that the council had properly applied the relevant planning instruments and policies in reaching its decision. Consequently, the court dismissed Furlong's appeal and upheld the council's refusal of the development application.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade Dee Why, is refused.

(3) The exhibits are returned with the exception of Exhibits 1, A and C which are retained.

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:	Furlong v Northern Beaches Council [2022] NSWLEC 1208
Hearing dates:	17-18 February 2022
Date of orders:	22 April 2022
Decision date:	22 April 2022
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade Dee Why, is refused. (3) The exhibits are returned with the exception of Exhibits 1, A and C which are retained.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to a dwelling house – view loss – balancing view loss in instances of general compliance with other relevant controls – design alternatives
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34, 34AA, 39 Warringah Local Environmental Plan 2011, cl 1.2
Cases Cited:	Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Wang v North Sydney Council [2018] NSWLEC 122
Texts Cited:	Land and Environment Court, COVID-19 Pandemic Arrangements Policy, 1 December 2021 Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Antaine Seamus Furlong (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2021/277647
Publication restriction:	No