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:
Solicitors:
J Smith (Applicants)
A Gough (Solicitor) (Respondent)
Hones Lawyers (Applicants)
Storey & Gough (Respondents)
File Number(s): 2019/216932 Publication restriction: No
Judgment
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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
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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.
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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.
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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).
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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),…
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- Case
- [2020] NSWLEC 1600
- Decision Date
CaseChat Overview and Summary
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
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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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