Garling v Northern Beaches Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Garling v Northern Beaches Council [2022] NSWLEC 1512

Hearing dates:

Conciliation conference on 8 and 9 August 2022

Date of orders:

20 September 2022

Decision date:

20 September 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld;

(2) Development consent no DA2016/0963 is modified in the terms in Annexure A.

(3) Development consent no DA2016/0963 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – conditions of consent – modification of development consent – consideration of objector submissions - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, ss 34, 34AA, 38, 39

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy 55 – Remediation of Land

Warringah Local Environmental Plan 2011, cll 2.3, 2.7, 6.1

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Jon Garling v Northern Beaches Council [2022] NSWLEC 102

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Texts Cited:

Warringah Development Control Plan 2012

Category:

Principal judgment

Parties:

Jon Garling (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

22/80407

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination of modification application MOD2021/0235 seeking to modify or delete a number of conditions of development consent DA2016/0963 as modified by MOD2019/0253 (the Proposed Development) at 24 Lancaster Crescent Collaroy, legally described as Lot 3 Section 10 in Deposited Plan 11899 (the Site).

2. The case is about privacy and view impacts on adjacent neighbours.

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 8 and 9 August 2022. I have presided over the conciliation conference.

4. The proceedings commenced onsite and the Court heard from adjacent neighbour objectors and also attended each of the neighbouring properties. One of the neighbours had a legal representative, Mr Peter Tomasetti SC, who spoke on their behalf and provided to the Court a folder containing their written submissions dated 8 August 2022 and documents referred to in those submissions (Objector’s Folder). A copy of the Objector’s Folder was not provided to the Respondent or the Applicant and the objector’s legal representative relied on s 39(4) of the LEC Act, but I think can also rely on s 38(2) of the LEC Act. I also note that within the Objector’s Folder at Tab 7 is a document titled Draft Second Respondent Statement of Facts and Contentions…