Gow v Warringah Council - [2013] NSWLEC 1093

Land and Environment Court

New South Wales

Medium Neutral Citation: Gow v Warringah Council [2013] NSWLEC 1093
Hearing dates: 14 March 2013
Decision date: 15 March 2013
Jurisdiction: Class 1
Before: Brown C
Decision:
1.The applicant is granted leave to rely upon an amended application, being:
Architectural plans prepared by Buena Vista Home Design, Drawing No. DA02 (dated 23 November 2012), DA03 (dated 6 February 2013), DA04 (dated 19 December 2012 and DA05 (dated 23 November 2012); Landscape Plan prepared by Ecodesign, Drawing No. L-01, revision G and dated 26 November 2012; Revised Hydraulic Design prepared by Nasseri Associates and dated 31 January 2013; Revised Operational Management Plan prepared by MB Town Planning, Issue B and dated 26 November 2012.
2.The Applicant is to pay the respondent's costs thrown away as a result of the amended application pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.
3.The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld;
4.Development Application No. 2012/0769 lodged with the respondent on 29 June 2012 to construct a 9 room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff is approved subject to conditions 1 to 52 in Annexure A.
5. The exhibits are returned with the exception of exhibit 3

Catchwords: CONSENT ORDERS: construction of a boarding house - resident objections relating to unacceptable impact on the character of the area, inadequate parking, unacceptable loss of privacy and overlooking and noise.
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191
Category: Principal judgment
Parties: Lynette Pearl Gow (Applicant)
Warringah Council (Respondent)
Representation: Ms Saw, barrister (Applicant)
Mr Gough, solicitor (Respondent)
Solicitors
Downeys Lawyers Pty Ltd (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s): 10956 of 2012

Judgment

COMMISSIONER: This is an appeal against a refusal by Warringah Council of DA 2012/0769 for the construction of a boarding house in accordance with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) at 116 Queenscliff Road, Queenscliff.

The appeal was the subject of conciliation conferences on 12 November 2012 and 19 February 2013 under s 34 of the Land & Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(a). The parties consented to me disposing of the proceedings at a latter being 13 March 2013 pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference is pursuant to s 34(4)(b)(ii).

Following the preparation of amended plans the council sought to have the appeal dealt with as a consent orders hearing as the council's previous contentions had been satisfactorily addressed through the amended plans. The amended plans included:

1. a reduction in the number of boarding rooms from 12 to 9 with an additional room…

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: [2013] NSWLEC 1093
Decision Date: 15 March 2013

CaseChat Overview and Summary

The parties involved in the case were Gow, the applicant, and Warringah Council, the respondent. The dispute was regarding the approval of a development application for the construction of a 9-room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff. The case was heard in the Land and Environment Court of New South Wales. The applicant sought to amend their development application, which was initially lodged on 29 June 2012. The applicant wanted to rely on additional architectural plans, a landscape plan, a revised hydraulic design, and a revised operational management plan in support of the application.

The legal issues that the court had to decide were whether the applicant should be granted leave to rely on the amended application, whether the applicant should pay the respondent's costs thrown away as a result of the amended application, and whether the appeal under s97 of the Environmental Planning and Assessment Act 1979 should be upheld. The court also had to determine whether the development application should be approved subject to certain conditions. The court considered the relevant legislation, the planning policies and guidelines, and the evidence presented by both parties.

The court granted the applicant leave to rely on the amended application, noting that the additional plans provided a more comprehensive and detailed proposal. The court also held that the applicant should pay the respondent's costs thrown away as a result of the amended application. Regarding the appeal, the court found that the respondent had failed to provide sufficient reasons for refusing the development application, and that the applicant had addressed the respondent's concerns in the amended application. The court upheld the appeal and approved the development application subject to conditions 1 to 52 in Annexure A. The court returned the exhibits, except for exhibit 3.

Orders

Orders of the court

1.The applicant is granted leave to rely upon an amended application, being:

Architectural plans prepared by Buena Vista Home Design, Drawing No. DA02 (dated 23 November 2012), DA03 (dated 6 February 2013), DA04 (dated 19 December 2012 and DA05 (dated 23 November 2012); Landscape Plan prepared by Ecodesign, Drawing No. L-01, revision G and dated 26 November 2012; Revised Hydraulic Design prepared by Nasseri Associates and dated 31 January 2013; Revised Operational Management Plan prepared by MB Town Planning, Issue B and dated 26 November 2012.

2.The Applicant is to pay the respondent's costs thrown away as a result of the amended application pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

3.The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld;

4.Development Application No. 2012/0769 lodged with the respondent on 29 June 2012 to construct a 9 room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff is approved subject to conditions 1 to 52 in Annexure A.

5. The exhibits are returned with the exception of exhibit 3

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gow v Warringah Council [2013] NSWLEC 1093
Hearing dates:	14 March 2013
Decision date:	15 March 2013
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1.The applicant is granted leave to rely upon an amended application, being: Architectural plans prepared by Buena Vista Home Design, Drawing No. DA02 (dated 23 November 2012), DA03 (dated 6 February 2013), DA04 (dated 19 December 2012 and DA05 (dated 23 November 2012); Landscape Plan prepared by Ecodesign, Drawing No. L-01, revision G and dated 26 November 2012; Revised Hydraulic Design prepared by Nasseri Associates and dated 31 January 2013; Revised Operational Management Plan prepared by MB Town Planning, Issue B and dated 26 November 2012. 2.The Applicant is to pay the respondent's costs thrown away as a result of the amended application pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 3.The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld; 4.Development Application No. 2012/0769 lodged with the respondent on 29 June 2012 to construct a 9 room boarding house at Lot 9 in Deposited Plan 16941, being 116 Queenscliff Road, Queenscliff is approved subject to conditions 1 to 52 in Annexure A. 5. The exhibits are returned with the exception of exhibit 3
Catchwords:	CONSENT ORDERS: construction of a boarding house - resident objections relating to unacceptable impact on the character of the area, inadequate parking, unacceptable loss of privacy and overlooking and noise.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	Lynette Pearl Gow (Applicant) Warringah Council (Respondent)
Representation:	Ms Saw, barrister (Applicant) Mr Gough, solicitor (Respondent) Solicitors Downeys Lawyers Pty Ltd (Applicant) Storey & Gough Lawyers (Respondent)
File Number(s):	10956 of 2012