Haynes v Northern Beaches Council - [2020] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation: Haynes v Northern Beaches Council [2020] NSWLEC 1600
Hearing dates: 5–6 November 2020
Date of orders: 3 December 2020
Decision date: 03 December 2020
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) Leave is granted to rely on: an amended BASIX certificate 949494M_04, dated 9 November 2020; amended plans in Exhibit Q; amended PoM in Exhibit S; and amended arboricultural report in Exhibit M.
(2) The appeal is upheld.
(3) Development Application 2018/1817 seeking demolition of existing structures and construction of a part one and part two-storey boarding house of 31 rooms, with associated infrastructure and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest is approved, subject to conditions as modified in Annexure A.
(4) The exhibits, except for Exhibits A, Q, S, 1 and 5 are returned.

Catchwords:
DEVELOPMENT APPLICATION – boarding house –compatibility with character and streetscape – amenity – bulk and scale

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15(1), 8.7(1), 8.15(3),
State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 26(b), 27, 28, 29, 30, 30A, 30AA, 54C
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Warringah Local Environmental Plan 2011 cll 2.3, 4.3

Cases Cited:
Cachia v Manly Council (No 2) [2009] NSWLEC 1107

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020)
Northern Beaches Council, Waste Management Guidelines (25 October 2016)
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Brain Haynes (First Applicant)
Gillian Sudlow-Haynes (Second Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
J Smith (Applicants)
A Gough (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicants)
Storey & Gough (Respondents)

File Number(s): 2019/216932
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2018/1817 by Northern Beaches Council (hereafter the Council), which as amended, seeks the demolition of existing structures and construction of a part one and part two-storey boarding house with 30 boarding rooms plus a managers room, basement parking, associated civil infrastructure, landscaping and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest (hereafter the site).

Background

The DA was lodged with Council on 14 November 2018, and subsequently notified to residents, with 21 submissions received, being three (3) in support and 18 in objection, citing issues relating to: character; landscaping; amenity; parking; stormwater management; and waste management.
The DA was referred to and recommended for refusal by the Northern Beaches Local Planning Panel (NBLPP) on the same grounds as expressed by Council it is refusal of the DA.
The applicant appealed against the refusal of the DA with the Land and Environment Court (the Court), pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
Prior to the hearing of this appeal, on 14 July 2020, leave was granted by the Court to the applicant’s request to rely on amended plans (subsequently tendered as Exhibit L),…

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: [2020] NSWLEC 1600
Decision Date: 03 December 2020

CaseChat Overview and Summary

In the case of Haynes v Northern Beaches Council, the applicant sought to demolish existing structures and build a boarding house on a property located at 6 Gladys Avenue, Frenchs Forest. The Northern Beaches Council had previously refused the applicant’s development application, which led to the applicant appealing the decision. The matter was brought before the court to determine the validity of the appeal and the subsequent approval of the development application.

The legal issues before the court centred on whether the applicant’s development application should be approved, and if so, under what conditions. This involved examining the applicant's submissions, the evidence provided, and the requirements set forth by the relevant planning and environmental laws. The court had to determine whether the proposed development met the necessary criteria and standards, including those related to the environment, heritage, and community impact.

The court found that the applicant had presented sufficient evidence to support the approval of the development application, subject to certain conditions. The court granted the applicant's request to rely on amended documents, including an amended BASIX certificate, plans, a proof of maintenance, and an arboricultural report. The court acknowledged the changes and improvements made in the application and determined that the proposed development was in line with the relevant planning policies and environmental considerations. As a result, the appeal was upheld, and the development application was approved, with the specified conditions to be met.

In conclusion, the court ordered that the applicant's development application be approved, subject to the conditions outlined in Annexure A, and that certain exhibits be returned, excluding specific ones referenced in the judgment.

Orders

Orders of the court

The Court orders:

(1) Leave is granted to rely on: an amended BASIX certificate 949494M_04, dated 9 November 2020; amended plans in Exhibit Q; amended PoM in Exhibit S; and amended arboricultural report in Exhibit M.

(2) The appeal is upheld.

(3) Development Application 2018/1817 seeking demolition of existing structures and construction of a part one and part two-storey boarding house of 31 rooms, with associated infrastructure and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest is approved, subject to conditions as modified in Annexure A.

(4) The exhibits, except for Exhibits A, Q, S, 1 and 5 are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Haynes v Northern Beaches Council [2020] NSWLEC 1600
Hearing dates:	5–6 November 2020
Date of orders:	3 December 2020
Decision date:	03 December 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to rely on: an amended BASIX certificate 949494M_04, dated 9 November 2020; amended plans in Exhibit Q; amended PoM in Exhibit S; and amended arboricultural report in Exhibit M. (2) The appeal is upheld. (3) Development Application 2018/1817 seeking demolition of existing structures and construction of a part one and part two-storey boarding house of 31 rooms, with associated infrastructure and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest is approved, subject to conditions as modified in Annexure A. (4) The exhibits, except for Exhibits A, Q, S, 1 and 5 are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house –compatibility with character and streetscape – amenity – bulk and scale
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15(1), 8.7(1), 8.15(3), State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 26(b), 27, 28, 29, 30, 30A, 30AA, 54C State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Warringah Local Environmental Plan 2011 cll 2.3, 4.3
Cases Cited:	Cachia v Manly Council (No 2) [2009] NSWLEC 1107
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020) Northern Beaches Council, Waste Management Guidelines (25 October 2016) Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Brain Haynes (First Applicant) Gillian Sudlow-Haynes (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: J Smith (Applicants) A Gough (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicants) Storey & Gough (Respondents)
File Number(s):	2019/216932
Publication restriction:	No