Hatch v Northern Beaches Council - [2019] NSWLEC 1422

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 2013
Cases 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 46
Texts Cited: Building Code of Australia
Manly Development Control Plan 2013
National Construction Code 2019 Volume Two
Category: Principal judgment
Parties: Aaron Hatch (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
G McKee (Solicitor) (Applicant)
C Gough (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Storey and Gough Lawyers (Respondent)

File Number(s): 2018/331252
Publication restriction: No

Judgment

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.
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.
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…

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: [2019] NSWLEC 1422
Decision Date: 10 September 2019

CaseChat Overview and Summary

The case of Hatch v Northern Beaches Council arose from an appeal against the refusal of an application for development consent for a proposed building. The applicant, Hatch, sought to construct a building on a property, but the council rejected the application. The applicant then lodged an appeal against this decision with the Land and Environment Court of New South Wales. The council cross-appealed the decision to grant the applicant development consent. The court was required to decide whether the decision to refuse the application was lawful and whether the grant of consent was appropriate. Additionally, the court had to consider the application to modify the consent for a previous development approval.

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

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:	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 2013
Cases 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 46
Texts Cited:	Building Code of Australia Manly Development Control Plan 2013 National Construction Code 2019 Volume Two
Category:	Principal judgment
Parties:	Aaron Hatch (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) C Gough (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Storey and Gough Lawyers (Respondent)
File Number(s):	2018/331252
Publication restriction:	No