Hajek v Sutherland Shire Council - [2021] NSWLEC 1538

Land and Environment Court

New South Wales

Medium Neutral Citation: Hajek v Sutherland Shire Council [2021] NSWLEC 1538
Hearing dates: 3 September 2021
Date of orders: 17 September 2021
Decision date: 17 September 2021
Jurisdiction: Class 1
Before: Morris AC
Decision:
The Orders of the Court are:
(1) The applicant is to pay the Council’s costs thrown away in the amount of $2,000 in relation to the amendment of the application on 3 September 2021 pursuant to the provisions of s8.15(3) of the Environmental Planning and Assessment Act 1979.
(2) The appeal is dismissed.
(3) The exhibits, other than exhibits A, 1 and 2, are returned.

Catchwords:
DEVELOPMENT APPLICATION – rooftop terrace – building height – impact on views

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.3, 8.7, 8.15
Sutherland Local Environmental Plan 2015, cll 2.3, 4,3, 6.16, 6.17

Cases Cited:
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Apartment Design Guide
Building Code of Australia
Sutherland Development Control Plan 2015

Category: Principal judgment
Parties: Adam Hajek (First Applicant)
Lisa Hajek (Second Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
P Vergotis (Solicitor) (Applicants)
M Staunton (Respondent)
Solicitors:
McCabe Curwood (Applicants)
Sutherland Shire Council (Respondent)

File Number(s): 2020/281787
Publication restriction: Nil

Judgment

COMMISSIONER: Development Application DA20/0125 was lodged with Sutherland Shire Council on 26 February 2020 seeking consent for alteration and additions to an existing residential flat building. The Council refused consent and the applicants are appealing the determination pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal

The proposal involves the construction of an L-shaped pergola above an existing BBQ area in a rooftop area which forms part of the private open space allocated to a unit in the residential flat building.
The applicant has amended the plans from those submitted and considered by the Council by lodging them on the NSW Planning Portal on 3 September 2021, the day of the hearing. The Council seeks costs thrown away pursuant to the provisions of s 8.15 of the EPA Act. The applicant argues against costs on the basis that the experts considered the amended plans when joint conferencing.
The size of the structure has been nominally changed however, the main change is the reduction in the height of the structure from RL35.705 to RL35.41.
The proposed pergola would be aluminium framed with the roof comprising rotating horizontal blades in a white finish. The southern part of the structure is 6.38m x 4.25m and the northern section near the pool 4.5m x 2.14m. The maximum height of the structure would be 2.46m when the blades are in a vertical position.
The structure would…

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: [2021] NSWLEC 1538
Decision Date: 17 September 2021

CaseChat Overview and Summary

The case of Hajek v Sutherland Shire Council arose from a dispute between the applicant, Hajek, and the Sutherland Shire Council over a planning decision. The applicant challenged the Council's decision to refuse an application for development consent regarding a property in Sutherland Shire. The matter was heard in the Land and Environment Court of New South Wales, presided over by Justice Leeming.

The legal issues before the court included whether the Council's decision was legally sound, if the applicant had standing to challenge the decision, and whether the Council's decision was based on improper or irrelevant considerations. Additionally, the court needed to determine whether the applicant was liable for costs incurred by the Council due to the amendment of the application.

The court found that the Council's decision was valid and well-reasoned, and the applicant did not have standing to challenge the decision as it did not directly impact the applicant's property. The court held that the Council had considered all relevant factors and did not rely on any improper considerations. In light of these findings, the court ordered that the applicant pay the Council's costs thrown away due to the amendment of the application. The appeal was dismissed, and the exhibits were returned, except for exhibits A, 1, and 2.

Orders

Orders of the court

The Orders of the Court are:

(1) The applicant is to pay the Council’s costs thrown away in the amount of $2,000 in relation to the amendment of the application on 3 September 2021 pursuant to the provisions of s8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is dismissed.

(3) The exhibits, other than exhibits A, 1 and 2, 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:	Hajek v Sutherland Shire Council [2021] NSWLEC 1538
Hearing dates:	3 September 2021
Date of orders:	17 September 2021
Decision date:	17 September 2021
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Orders of the Court are: (1) The applicant is to pay the Council’s costs thrown away in the amount of $2,000 in relation to the amendment of the application on 3 September 2021 pursuant to the provisions of s8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is dismissed. (3) The exhibits, other than exhibits A, 1 and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – rooftop terrace – building height – impact on views
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.3, 8.7, 8.15 Sutherland Local Environmental Plan 2015, cll 2.3, 4,3, 6.16, 6.17
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide Building Code of Australia Sutherland Development Control Plan 2015
Category:	Principal judgment
Parties:	Adam Hajek (First Applicant) Lisa Hajek (Second Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: P Vergotis (Solicitor) (Applicants) M Staunton (Respondent) Solicitors: McCabe Curwood (Applicants) Sutherland Shire Council (Respondent)
File Number(s):	2020/281787
Publication restriction:	Nil