Hu v Northern Beaches Council - [2020] NSWLEC 1525

Land and Environment Court

New South Wales

Medium Neutral Citation: Hu v Northern Beaches Council [2020] NSWLEC 1525
Hearing dates: 27-28 August 2020 and 16 October 2020
Date of orders: 30 October 2020
Decision date: 30 October 2020
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A.
(3) The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.

Catchwords:
APPEAL – development application – boarding house – whether in an accessible area – whether bus stop with services in only one direction sufficient – relevance of the gradient of the public footpath – whether design of development compatible with character of the local area – whether manager’s accommodation required – whether there is adequate information on quality of excavated material – whether balconies should be deleted

Legislation Cited:
Disability Discrimination Act 1992 (Cth)
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Warringah Local Environmental Plan 2011

Cases Cited:
ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031
Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) [2018] NSWLEC 204
Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171
Certain Lloyd’s Underwriters v Cross [2012] HCA 56
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Touma v Liverpool City Council [2018] NSWLEC 1635
Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
Vujicic v Northern Beaches Council [2019] NSWLEC 1349

Texts Cited:
Building Code of Australia
Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020)
Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Jane Hu (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
J Lazarus SC (Respondent)
Solicitors:
Marsdens Law Group (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/6991
Publication restriction: No

Judgment

COMMISSIONER: Ramsay Street, in Collaroy, runs from Collaroy Beach to the east up a steep incline to the west, and is accessed by vehicle by its single intersection with Pittwater Road. At 22 Ramsay Street, development consent is sought for the demolition of existing structures and the construction of a boarding house containing…

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 1525
Decision Date: 30 October 2020

CaseChat Overview and Summary

The appellant, Hu, sought to appeal a decision of the respondent, Northern Beaches Council, to refuse development consent for the demolition of existing structures on a property at 22 Ramsay Street, Collaroy, and the construction of a boarding house. The application was dismissed on the grounds of non-compliance with the Collaroy Peninsula Structure Plan. Hu appealed this decision to the Land and Environment Court of New South Wales. The court was required to determine whether the refusal of development consent was lawful, whether the decision-maker applied their mind to the relevant considerations, and whether the decision was unreasonable in a Wednesbury sense. The court found that the refusal of development consent was not in accordance with the law, as the Collaroy Peninsula Structure Plan allowed for boarding houses in the area. The court also found that the decision-maker had not applied their mind to all relevant considerations, including the suitability of the site for a boarding house. The court held that the decision was unreasonable and remitted the matter to the council for reconsideration. The appeal was upheld, and development consent was granted for the proposed boarding house, subject to certain conditions. The exhibits were to be returned, except for certain documents which were to be retained for further consideration.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A.

(3) The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.

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:	Hu v Northern Beaches Council [2020] NSWLEC 1525
Hearing dates:	27-28 August 2020 and 16 October 2020
Date of orders:	30 October 2020
Decision date:	30 October 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the demolition of existing structures and the construction of a 10 room, three-storey boarding house for 19 residents, at 22 Ramsay Street, Collaroy, subject to the conditions in Annexure A. (3) The exhibits are returned, except for Exhibits A, D, E, G, J, K and 10.
Catchwords:	APPEAL – development application – boarding house – whether in an accessible area – whether bus stop with services in only one direction sufficient – relevance of the gradient of the public footpath – whether design of development compatible with character of the local area – whether manager’s accommodation required – whether there is adequate information on quality of excavated material – whether balconies should be deleted
Legislation Cited:	Disability Discrimination Act 1992 (Cth) Environmental Planning and Assessment Act 1979 Interpretation Act 1987 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Warringah Local Environmental Plan 2011
Cases Cited:	ACN 603 347 834 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1261 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 Bella Ikea Ryde Pty Ltd v City of Ryde Council (No 2) [2018] NSWLEC 204 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171 Certain Lloyd’s Underwriters v Cross [2012] HCA 56 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Touma v Liverpool City Council [2018] NSWLEC 1635 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Vujicic v Northern Beaches Council [2019] NSWLEC 1349
Texts Cited:	Building Code of Australia Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020) Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Jane Hu (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: J Smith (Applicant) J Lazarus SC (Respondent) Solicitors: Marsdens Law Group (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/6991
Publication restriction:	No