Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hatch v Northern Beaches Council [2019] NSWLEC 1422 Hearing dates: 26 and 28 June 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Class 1 Before: Bindon AC Decision: The orders of the Court are:
(1) The appeal is dismissed.
(2) The application to modify the development consent granted by the Court for DA370/2016 is determined by refusal.
(3) The exhibits are returned, with the exception of Exhibits A and 1.Catchwords: MODIFICATION APPLICATION – whether substantially the same development – gymnasium in a dwelling – habitable room and BCA – basement Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Manly Local Environment Plan 2013Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Arrage v Inner West Council [2019] NSWLEC 85
FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300
Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241
Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342
Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Woollahra Municipal Council v D’Albora Marinas Pty Ltd (1992) 75 LGRA 46Texts Cited: Building Code of Australia
Manly Development Control Plan 2013
National Construction Code 2019 Volume TwoCategory: Principal judgment Parties: Aaron Hatch (Applicant)
Northern Beaches Council (Respondent)Representation: Counsel:
Solicitors:
G McKee (Solicitor) (Applicant)
C Gough (Solicitor) (Respondent)
McKees Legal Solutions (Applicant)
Storey and Gough Lawyers (Respondent)
File Number(s): 2018/331252 Publication restriction: No
Judgment
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COMMISSIONER: This appeal by Aaron Hatch (Applicant) is brought against the deemed refusal by the respondent Northern Beaches Council, (Council) to an application to modify a development consent (the modification application) granted by orders of the Land and Environment Court of NSW (the Court) on 19 July 2017 (LEC Case No. 2017/047161) (the original consent). The original consent was granted pursuant to s 34(3) of the Land and Environment Court Act 1979 (the LEC Act) to give effect to an agreement reached between the Applicant and Council.
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This modification application is made subject to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the appeal is made pursuant to s 8.9 of the EPA Act.
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The matter was heard before the Court over two days on 26 and 28 June 2019 and adjourned for further submissions by teleconference on 10 July 2019. The proceedings commenced as a conciliation conference held pursuant to the provisions of s 34AA of the LEC Act, and when an agreement could not be reached the s 34AA conference was terminated and the proceedings converted to a…
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- Case
- [2019] NSWLEC 1422
- Decision Date
CaseChat Overview and Summary
The court examined the planning and environmental laws applicable to the case, including the Environmental Planning and Assessment Act 1979 and the relevant planning instruments. The court found that the council's decision to refuse the application was lawful and that the applicant had not demonstrated that the refusal was unreasonable. The court also determined that the grant of consent for the previous development was appropriate and that the application to modify the consent was not justified. The court found that the applicant had not provided sufficient evidence to support the modification of the consent and that the modification would have adverse environmental impacts. The court dismissed the appeal and refused the application to modify the consent.
The court's orders were that the appeal be dismissed, the application to modify the development consent be refused, and the exhibits be returned, except for two specified exhibits. The court's decision was based on a thorough analysis of the relevant planning and environmental laws and a consideration of the evidence presented by both parties. The court found that the council's decision to refuse the application was lawful and that the applicant had not demonstrated that the refusal was unreasonable. The court also determined that the grant of consent for the previous development was appropriate and that the application to modify the consent was not justified.
Orders
Orders of the court
The orders of the Court are:
(1) The appeal is dismissed.
(2) The application to modify the development consent granted by the Court for DA370/2016 is determined by refusal.
(3) The exhibits are returned, with the exception of Exhibits A and 1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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